On New Year’s’ Day in 2003, Brandy Holmes and her
boyfriend Robert Coleman knocked on a door in Blanchard. When retired
minister Julian Brandon, Jr., 68, answered, Brandy and Robert forced
their way in. They shot the elderly man, and when he didn’t die right
away, they stabbed him multiple times. They also shot his wife, Alice,
who survived but died five years later. Brandy was arrested after her
neighbors called a tip line and told police that she’d been bragging
about killing an elderly couple and trying to sell their jewelry.
After being sentenced to death, Brandy appealed,
stating that her fetal alcohol syndrome should have been considered in
her sentencing. Tom Donaldson, president of the National Organization
on Fetal Alcohol Syndrome supported her appeal, saying, “Her mother
testified that she drank throughout her pregnancy, and in fact named
her daughter after her favorite drink. Brandy’s capacity to appreciate
the criminality of her actions or to conform to the law is very
seriously impaired.” The appeal was denied by the court.
Death row female inmate denied high court review
By Bill Mears - CNN.com
October 5, 2009
WASHINGTON (CNN) -- The U.S. Supreme Court on
Monday declined to hear an appeal from a female death row inmate who
said fetal alcohol syndrome should have been considered by the state
court that reviewed her sentence.
The justices gave no reason for
rejecting the appeal, which challenged the constitutionality of
Louisiana's capital sentencing procedures and argued that Brandy
Holmes' alleged developmental disabilities should disqualify her from
Holmes, 29, is one of two women
scheduled to be executed in Louisiana. She and a male co-defendant
were convicted of murder in the New Year's Day 2003 death of Julian
Brandon, a retired minister near Shreveport. Holmes is being held at
the Louisiana Correctional Institute for Women at St. Gabriel.
Experts on fetal alcohol syndrome
call it the nation's leading preventable cause of mental retardation.
As many as 40,000 newborns in the United States are affected each year
by their mother's alcohol use, according to an advocacy group. The
syndrome can lead to brain damage, behavioral problems and
Holmes' attorneys said she
functions like a 10- to 12-year-old.
"Brandy has a hallmark case of
FAS," said Tom Donaldson, president of the National Organization on
Fetal Alcohol Syndrome, which supported the defendant in her high
"Her mother testified that she
drank throughout her pregnancy, and in fact named her daughter after
her favorite drink. Brandy's capacity to appreciate the criminality of
her actions or to conform to the law is very seriously impaired."
Donaldson and others argue the
medical and legal system is unprepared to recognize, intervene and
educate when presented with the majority of FAS-related cases,
especially those involving younger defendants.
In a petition to the justices,
Holmes' attorney, Charles Ogletree, argued the Louisiana Supreme Court
did not "review the extensive mitigating circumstances that limited
Ms. Holmes's moral culpability and compare them to the mitigating
circumstances presented in similar cases. The [state] court also
failed to consider that petitioner's co-defendant received a death
sentence and that the prosecutor stated at the co-defendant's trial
that he (and not the petitioner) was the more culpable party."
That co-defendant, Robert Coleman,
remains on death row at the Louisiana State Penitentiary at Angola.
Ogletree is a noted Harvard Law
School professor who taught President Obama when he was a law student.
The state in its reply brief noted
the violent nature of the robbery-murder. The victim's wife also
suffered gunshot wounds in the attack. She lived in a severely
impaired state for years and passed away in October 2008.
Investigators said Holmes tried to
use the victims' ATM card and destroyed evidence of the crime.
Detectives said she even stole a videotape of her confession that was
left unattended at the police station.
"Holmes destroyed this tape by
sneaking it into the ladies' room and flushing the magnetic tape down
the toilet, after substituting a blank tape in the stack of taped
statements that had been left unsecured on a detective's desk,"
according the the state's brief.
Police also suspect she flushed
jewelry she had been wearing, which they suggested may have been
stolen from the Brandons.
The Supreme Court previously had
banned execution of the mentally retarded, though the justices
established no clear benchmark on IQ test results to guide criminal
The justices also have closely
monitored Louisiana's capital punishment system in recent years,
criticizing in some cases the role of some prosecutors and the
procedural guarantees required in such cases.
The justices last year ordered a
new trial for an African-American capital defendant after finding
problems with how prosecutors excluded blacks from an all-white jury.
That same year, the high court blocked use of the death penalty for a
New Orleans-area man convicted of child rape. Louisiana was one of the
few states that had actively pushed execution for nonhomicide crimes.
Fifty-three women remain on death
row around the country. Forty women have been executed in the past
century -- 11 since 1976 when the Supreme Court restored capital
punishment, according the Death Penalty Information Center.
The other woman on death row in
Louisiana is Antoinette Frank, a former New Orleans policewoman
convicted of three murders, including that of her former partner on
the police force. Her scheduled execution last year was delayed
indefinitely by appeal.
LA. Supremes Uphold Death Sentence for Brandy
December 2, 2008
NEW ORLEANS (AP) - The Louisiana Supreme Court has
upheld the death sentence of a woman convicted of killing a retired
minister after invading his home in Blanchard for a holdup in 2003.
A Caddo Parish jury convicted Brandy Holmes of
first-degree murder of Julian L. Brandon Jr.
The high court upheld that conviction and sentence
Tuesday, in a 5-2 ruling.
Chief Justice Pascal Calogero and Justice Bernette
Johnson wrote separate dissents focusing on arguments that Holmes was
mentally retarded and therefore could not be sentenced to death.
The trial lawyer did not ask jurors for a verdict
on retardation or ask the judge to instruct jurors that a finding of
retardation would rule out the death penalty.
Holmes jury hears about second murder
February 15, 2006
Jurors in the Brandy Holmes murder trial heard
chilling stories this morning -- about a second slaying that happened
and a planned one that didn't get carried out, but would have born
striking similarities to the slaying of a minister.
The penalty phase of Holmes' first-degree trial
began this morning in Caddo District Court. The jury has convicted her
of killing Blanchard minister Julian Brandon during a home invasion
three years ago. They now will decide whether she gets a death
sentence or life in prison.
Holmes' lawyers told the jury she suffers from
fetal alcohol syndrome that has caused personality disorder. They did
not say whether Holmes will testify.
The penalty phase of a capital trial usually
includes testimony about the defendant's character and victim-impact
In opening statements to the jury today, the
prosecution told about the murder of Terrance Blaze, whose body was
found after the Brandon slaying was discovered. Holmes has also been
indicted but is not on trial for killing Blaze, whose body was found
in woods not far from the residences of both Holmes and Brandon.
"Four days after killing Mr. Brandon, her blood
lust was not satisfied," Assistant District Attorney Brady O'Callahan
O'Callahan told the jury they will also hear from a
woman who lived in a subdivision down the road from Brandon and had
Holmes stopped by Patricia Camp's house one day and
talked to her on the porch. She came back another time with a man but
Camp would not let her inside her house, O'Callahan said.
"Had she (Camp) let her in, she would have been
another Mr. Brandon," O'Callahan said.
Brandon was shot and stabbed to death shortly after
he answered the front door. His wife was shot but survived, although
she is permanently disabled.
The victims' daughter, Dawn Finely, who is expected
to testify about the impact the crime has had on her family, said she
hopes the jury sentences Holmes to die, just as another jury did in
the case of Holmes former boyfriend, Robert Coleman.
"We pray that they will have the courage to make
that decision," Finley said. "It's not a joy to have someone receive
the death penalty, but she should pay."
If Holmes gets a death sentence, she would be the
second woman currently on death row in Louisiana.
Supreme Couirt of Louisiana
State v. Holmes
STATE of Louisiana v. Brandy Aileen HOLMES
December 02, 2008
Capital Appeals Project, Jelpi Pierre Picou, Jr.,
New Orleans; Capital Post-Conviction Project of Louisiana, Sarah Lynn
Ottinger, New Orleans, Caroline Wallace Tillman, for Appellant.James
D. Caldwell, Attorney General, Paul Carmouche, District Attorney, Hugo
A. Holland, Jr., Lea R. Hall, Jr., Brady Dennis O'Callaghan, Catherine
Marion Estopinal, Shreveport, for Appellee.
On February 14, 2003, a Caddo Parish grand jury
indicted Brandy Aileen Holmes (“defendant”) for the first-degree
murder of Julian L. Brandon, Jr.1
On February 14, 2006, a unanimous jury found the defendant guilty as
On February 16, 2006, the jury unanimously determined that defendant
be sentenced to death, finding all three aggravating circumstances
urged by the State, specifically that: (1) the defendant was engaged
in the perpetration or attempted perpetration of an armed robbery,
first-degree robbery and simple robbery; (2) the defendant knowingly
created a risk of death or great bodily harm to more than one person;
and (3) the victim was 65 years of age or older.
This is a direct appeal under La. Const. art. V,
§ 5(D) by the defendant. Defendant appeals her conviction and
sentence raising 45 assignments of error, variously combined into
seventeen (17) arguments, with numerous assignments remaining not
argued. We will address the most significant of these assignments of
error in this opinion, and the remaining assignments of error will be
addressed in an unpublished appendix. After a thorough review of the
law and the evidence, for the following reasons we affirm the
defendant's first-degree murder conviction and the imposition of the
During the early evening hours of January 1, 2003,
the defendant and her boyfriend, Robert Coleman,3
forced their way into the rural home of Julian Brandon, a retired
minister who was 70 years of age, and his wife Alice, who was 68 years
of age. Reverend Brandon was shot at near contact range in the
underside of his jaw with a .380 caliber handgun. The bullet
separated into two pieces: one fragment entered the victim's brain;
the other exited the top of his head and was later recovered from the
dining room ceiling, adjacent to the front entryway. Julian Brandon
Defendant and Coleman then took Mrs. Brandon to the
rear bedroom of the residence and demanded her valuables, cash, and
credit cards as she begged for her life. The defendants subsequently
placed a pillow over Mrs. Brandon's face, shot her in the head, and
left her for dead. After shooting Mrs. Brandon, defendant and
Coleman heard Reverend Brandon struggling with his wounds. After
retrieving three Chicago Cutlery knives from the kitchen, they stabbed
and slashed him to death. They inflicted slashing cuts to Reverend
Brandon's nose and face and stabbing wounds on the top and rear of his
head and chest. One of the knives struck Reverend Brandon's head
with such force, it shattered and pieces of the knife were found
strewn about the crime scene. The offenders cut Reverend Brandon's
throat several times-two large cutting wounds went around the entire
neck, severing the carotid artery and jugular vein. Six stab wounds,
some wounds penetrating as deep as six inches, were also identified in
Reverend Brandon's left upper chest; these wounds went into the chest
cavity and involved the heart and lungs resulting in internal
bleeding. Another stab wound was found on the right side of the
chest; this wound involved the abdomen and liver. In addition, a
six-inch knife was found imbedded up to the handle in Reverend
On January 5, 2003, four days after the attack by
defendant and Coleman, Calvin Barrett Hudson, a family friend of the
Brandons, became concerned when the couple did not attend church on
Sunday and decided to check on them. When he and his wife went to
their friends' residence, they found Reverend Brandon lying in a pool
of his blood on the carpet. Hudson immediately went to a neighbor's
house and called the sheriff's office.
When the police responded to the call, they found
Reverend Brandon's body. It was not until the authorities checked
the house that they discovered Mrs. Brandon was barely alive. After
the police summoned emergency medical personnel, a medical helicopter
was called to transport Mrs. Brandon to the hospital. Even though
Mrs. Brandon received a gunshot wound to the head, she survived the
attack; at the time of trial, she remained permanently disabled and
requires around-the-clock care.
After the television news reported the crime, the
Caddo Parish Sheriff's Office received a tip from persons at an
apartment complex near the crime scene. The callers indicated the
defendant had been bragging about killing an elderly couple down the
road near a church and that she was trying to sell their jewelry.
Detectives then went to the trailer of Brenda Bruce, defendant's
mother, which was located near the homicide scene. There they
located defendant, Coleman, her mother, and defendant's 15-year-old
brother, Sean George. All four agreed to accompany the officers to
the sheriff's office for interviews.
Over the next two days and after being Mirandized
numerous times, the defendant made six recorded and unrecorded
statements, implicating herself and others to varying degrees in the
homicide and robbery; in only the first statement did the defendant
deny involvement in the murder of Reverend Brandon. In one of the
interviews, defendant claimed she was the shooter in both the murder
of Reverend Brandon and the attempted murder of his wife. Defendant
further revealed that two days after the violent entry into the
Brandon home, she and two of her young nephews bicycled to the
Brandons' residence; only the youngest nephew, nine years of age,
entered the residence with her. Defendant stated she went back to
the house because she dreamed the woman was still alive; even though
she heard Mrs. Brandon's heavy breathing, she just left the residence.
The nine-year-old nephew entered the home with his aunt, where he
observed Reverend Brandon lying in a pool of blood and heard Mrs.
Brandon screaming from another room in the home.4
A neighbor witnessed both nephews fleeing from the residence,
leaving the defendant inside the home.
In addition to several statements the defendant
made in which she admitted involvement in the violent entry into the
Brandon home and murder, police recovered considerable circumstantial
evidence demonstrating her participation. Although the gun used in
the shootings was not recovered, ballistics evidence demonstrated that
the weapon used in the Brandon homicide was the same weapon that had
belonged to defendant's father and had been stolen from his residence
in Tylertown, Mississippi; this theft occurred immediately before
defendant and Coleman traveled from Mississippi to Shreveport on
Christmas Eve 2002.5
In one of her statements to the police, the defendant admitted she
had stolen her father's .380 handgun while visiting him in
Mississippi. In addition, a surveillance video from Hibernia Bank
depicted the defendant and Coleman attempting to use the Brandons'
credit card at an ATM.
A search of the Bruce trailer where the defendant
and Coleman were staying led to the discovery of several incriminating
items. A multi-colored bracelet found in a clear plastic food
service glove was recovered from the rain gutter of the trailer where
the defendant stayed; Mrs. Brandon's daughter identified the
multi-colored bracelet as one she had given her mother some time
earlier. A box of food service gloves recovered from the bedroom
that defendant shared with Coleman had a diamond pattern consistent
with blood transfer stains observed at the crime scene. Three fired
.380 cartridge casings were also found in the rain gutter of the
trailer. Laboratory analysis revealed that Reverend Brandon's DNA
was found on one of these casings. Additionally, forensic analysis
matched the .380 projectile recovered from Reverend Brandon's brain
and the dining room ceiling to a projectile recovered from a tree at
the home of defendant's father in Mississippi; defendant's father had
fired the gun into a tree on his property before the gun was stolen.
At the penalty phase, in addition to victim-impact
evidence from the Brandons' two daughters, the State introduced
evidence that defendant had attempted another violent home entry days
before the charged offense in a gated community known as “Nob Hill.”
As a result of one of the defendant's admissions during investigation,
it became known the defendant participated in the homicide of Terrance
Blaze days after the Brandons were shot. Regarding the unadjudicated
homicide of Blaze, defendant originally directed the authorities to
his body during her interrogation concerning the Brandon homicide.
While defendant originally claimed Blaze had been killed by a gang
member as a result of a drug debt, forensic evidence later
demonstrated he had actually been killed in the car owned by
defendant's mother. The bullet recovered from the back of Blaze's
skull had the same class characteristics as the bullet recovered from
the tree in Mississippi; additionally, a cartridge casing found near
Blaze's body matched the cartridge case found in Mississippi where the
defendant's father had earlier fired the weapon. High velocity blood
spatter and other bloodstains matched to Blaze were found in the
defendant's mother's automobile and on Coleman's right boot and right
pant leg. Blood spatter evidence indicated Coleman was in the
driver's seat of the vehicle while Blaze rode as the passenger and
that the gunshot to the back of Blaze's head originated from the back
seat of the car. Defendant later admitted shooting Blaze in an
unsolicited letter to the assistant district attorney.
During the penalty phase, the defendant offered
mitigation evidence from her mother, Brenda, Dr. Mark Vigan, an expert
in psychology, Dr. Richard Williams, an expert in general medicine and
psychiatry with a psychiatric specialty in the treatment of addiction
disorders, and Dr. James Patterson, an expert in medicine, psychiatry,
and functional neuroimaging. The thrust of this evidence was to show
the defendant suffered from Fetal Alcohol Syndrome (FAS),6
that FAS caused her to have diminished mental capacity, and that this
syndrome adversely affected her decision-making process.
The defendant's mother testified that she drank
whiskey during the first three months of her pregnancy and that
afterwards she switched to beer. She told the jury she named the
defendant Brandy because that was the drink she liked. She stated
the defendant had a propensity for eating rocks and that she was in
special education classes when she was in school. She explained to
the jury that defendant was institutionalized at Sand Hill Hospital in
Mississippi for six months when she (defendant) was allegedly raped at
twelve years of age.
Dr. Vigan and his staff conducted a battery of
neuropsychological tests which examined five major areas: the
neuropsychological deficit scale; the impairment index; the category
test; the drawing test; and the localization score of the tactual
performance test. Out of these five tests, the defendant tested
positive in three of them. Commenting on these test results, Dr.
Vigan stated “these results indicate borderline intelligence, but not
chronic static organic brain syndrome.” Trial Tr. Vol. XXX, p. 6090
(Feb. 16, 2005). He further stated these tests showed defendant
suffered from “organic brain impairment, or loss of mental and
emotional-loss of cognitive abilities secondary to some kind of brain
dysfunction or damage or abnormalities.” Id. at 6091. Although Dr.
Vigan's staff suggested the defendant may have FAS based upon their
observation of her facial features, he stated he could not make that
diagnosis because he is not a medical doctor and that diagnosis is a
Under cross-examination, Dr. Vigan agreed that the
defendant basically functions mentally at least on a seventh grade
also concluded the defendant is responsible for her actions, that she
lacked empathy for other people, and she did not learn well from her
He further noted that although the defendant had been evaluated
numerous times by various members of the psychiatric community, none
of them ever diagnosed her as having FAS.
Dr. Williams opined that the defendant has a
diminished capacity for her responsibility because she has brain
damage. “She [the defendant] had brain damage not by her own choice.
It was a conduit from the toxicity of alcohol. So I think she has
a diminished capacity in accepting responsibility for her behavior.”
Trial Tr., vol. XXX, p. 6162 (Feb. 16, 2006). Dr. Williams further
stated he found the defendant “has a borderline level of intellectual
functioning. I think under axis three that she has brain damage and
brain dysfunction as a result of fetal alcohol syndrome.” Id. at
6138. He agreed that persons who suffer from FAS “often experience
mental health problems, disruptive school experience, inappropriate
sexual behavior, trouble with the law, alcohol and drug problems, and
difficult[y] in caring for themselves.” Id. at 6162. In
quantifying the degree of FAS, Dr. Williams opined that the defendant
fit into the FAS categories, but her case was not the most severe.
Dr. Williams further stated that brain scans, such as the ones
requested from Dr. Patterson, were necessary to confirm a diagnosis of
FAS. In conclusion, Dr. Williams stated “this possibly [may] be the
very first case in American jurisprudence where somebody was convicted
of first degree [murder] and the evidence of fetal alcohol syndrome
was presented to a jury in the death phase.” Id. at p. 6194.
Dr. Patterson, the medical expert in psychiatry and
neuroimaging, was the last medical expert to testify on the
defendant's behalf during the penalty phase. The defendant presented
his testimony “[t]o evaluate the brain scans from the defendant for
abnormalities.” Id. at p. 6199. His evaluation included an MRI and
a PET scan of the defendant's brain. He found the MRI showed
significant structural abnormalities of the defendant's brain that
were “consistent with published reports on brain findings in fetal
alcohol syndrome.” Id. at p. 6200. He also stated that the MRI did
not show other brain abnormalities associated with the published
literature in FAS, i.e., defects in the corpus callosum; changes in
the ventral frontal cortex; changes of the hippocampus; decreased
brain metabolism. He found the PET scan showed abnormalities, “but
the results were not consistent with published results [on fetal
alcohol syndrome].” Id.
As noted above, after reviewing the evidence,
including the mitigating evidence, the jury was unpersuaded by the
experts' mitigation evidence and an unanimous jury determined a
sentence of death should be imposed.
MENTAL COMPETENCY TO PROCEED TO TRIAL
(Assignments of error 1, 2, and 3)
Defendant contends the trial court erred when it
ruled she had the mental capacity to stand trial. In the present
case, the record shows the defendant filed a motion for the
appointment of a sanity commission on March 17, 2005, nearly a year
before trial. In the request for a sanity commission, defense
counsel alleged difficulties in communicating with the defendant and
noted her placement in the mental health unit of the jail; earlier
learning and developmental disorders; and the possibility she
suffered from FAS. The trial court granted the motion and appointed
psychiatrists, Dr. Charles Armistead and Dr. George Seiden, to the
Dr. Armistead met defendant and submitted a report
describing their interaction in detail, including her responses to a
number of questions posed to ascertain her competency. At the
conclusion of the report, Dr. Armistead opined:
This patient is considered to be of borderline
intelligence, but appears to understand the charges against her, the
general function of her lawyer and the judge and the trial procedures.
She also understands the consequences of being found guilty and not
guilty. She apparently has a history of a psychotic disorder,
perhaps bi-polar with depressive episodes of elation. She is
considered able to stand trial and able to cooperate with her lawyer
in her own defense. From her ability of recollect and recount the
events with which she is charged, it is my impression that she was
competent at the time of the alleged offenses and understood the
meaning and significance of her acts, although perhaps influenced by
the use of cocaine at the time.
Trial Tr., vol. XI, p. 2352 (March 30, 2005).
Dr. Seiden also interviewed defendant personally
and reviewed 30 documents (many of them police reports relating to the
crime) which he used to assist in his evaluation. In his report, Dr.
Seiden thoroughly described his interview with the defendant,
including several of her responses to his inquiries verbatim, and
offered the following opinion:
Based on my evaluation, I have concluded that
Brandy Alaine [sic] Holmes currently has the ability to consult with
her attorney with a reasonable degree of rational understanding and
currently has a rational and factual understanding of the proceedings
against her. Specifically, she understands the nature of the charges
against her and can appreciate their seriousness. She understands
what defenses are available to her. She can distinguish a guilty
plea from a not guilty plea and understands the consequences of each.
She has an awareness of her legal rights. She understands the
range of possible verdicts and the consequences of conviction. She
has the ability to recall and relate facts pertaining to her actions
and whereabouts at certain times. She has the ability to assist
counsel in locating and examining relevant witnesses. She has the
ability to maintain a consistent defense. She has the ability to
listen to the testimony of witnesses and inform her lawyer of any
distortions or misstatements. She has the ability to make simple
decisions in response to well-explained alternatives. If necessary
to her defense strategy, she is capable of testifying in her own
defense. Her mental condition is not likely to deteriorate under the
stress of trial.
I have also concluded, with reasonable medical
certainty, that at the time of the alleged offense, Ms. Holmes was not
suffering from any mental disease or defect that rendered her
incapable of distinguishing right from wrong with reference to the
conduct in question.
Trial Tr., vol. XI, pp. 2363-64 (April 27, 2005).
The State and defense submitted the matter based on
the reports and the trial court found the defendant possessed the
mental capacity to proceed. Despite the experts' conclusions
concerning her competency, the defendant claims the doctors'
observations of her raised serious questions concerning her mental
capacity to proceed.
It has long been established that a person whose
mental condition is such that he lacks the capacity to understand the
nature of the proceedings against him, and is unable to assist
counsel, may not be subject to trial. Drope v. Missouri, 420 U.S.
162, 171, 95 S.Ct. 896, 903, 43 L.Ed.2d 103 (1975). Thus, in order
to proceed with trial, a defendant must be “legally competent.”
Medina v. California, 505 U.S. 437, 449, 112 S.Ct. 2572, 2579, 120
L.Ed.2d 353, 365-66 (1992). Louisiana's statutory scheme for
detecting mental incapacity “jealously guards a defendant's right to a
fair trial.” State v. Nomey, 92-1631 (La.1/19/93), 613 So.2d 157,
161, (quoting State v. Rogers, 419 So.2d 840, 843 (La.1982)).
Notwithstanding, Louisiana law presumes defendant's sanity.
La.Rev.Stat. § 15:432; State v. Edwards, 257 La. 707, 243 So.2d 806
(1971). Thus, the burden is upon the accused to establish by a
preponderance of the evidence that the mental incapacity delineated in
La.Code Crim. Proc. art. 641 exists. State v. Frank, 96-1136
(La.10/4/96), 679 So.2d 1365, 1366; State v. Morris, 340 So.2d 195
La.Code Crim. Proc. art. 641 provides that
“[m]ental incapacity to proceed exists when, as a result of mental
disease or defect, a defendant presently lacks the capacity to
understand the proceedings against him or to assist in his defense.”
Although a trial court may receive expert medical testimony on the
issue of a defendant's competency to proceed to trial, the ultimate
decision of capacity rests alone with the trial court. La.Code Crim.
Proc. art. 647; Rogers, 419 So.2d at 843. A reviewing court owes
the trial court's determination of a defendant's mental capacity great
weight, and its ruling should not be disturbed in the absence of
manifest error. State v. Perry, 502 So.2d 543, 549 (La.1986), cert.
denied, 484 U.S. 872, 108 S.Ct. 205, 98 L.Ed.2d 156 (1987); State v.
Machon, 410 So.2d 1065, 1067 (La.1982); Morris, 340 So.2d at 203.
In State v. Bennett, 345 So.2d 1129, 1138
(La.1977), this Court held that the appropriate considerations for
determining whether the accused is fully aware of the nature of the
whether he understands the nature of the charge and
can appreciate its seriousness; whether he understands what defenses
are available; whether he can distinguish a guilty plea from a not
guilty plea and understand the consequences of each; whether he has
an awareness of his legal rights; and whether he understands the
range of possible verdicts and the consequences of conviction.
Additionally, in determining an accused's ability
to assist in his defense consideration should include:
whether he is able to recall and relate facts
pertaining to his actions and whereabouts at certain times; whether
he is able to assist counsel in locating and examining relevant
witnesses; whether he is able to maintain a consistent defense;
whether he is able to listen to the testimony of witnesses and inform
his lawyer of any distortions or misstatements; whether he has the
ability to make simple decisions in response to well-explained
alternatives; whether, if necessary to defense strategy, he is
capable of testifying in his own defense; and to what extent, if any,
his mental condition is apt to deteriorate under the stress of trial.
Bennett, 345 So.2d at 1138 (citations omitted).
The defendant first points to a portion of Dr.
Armistead's notes where he quoted defendant misstating the charges
pending against her. Despite defendant's contention in this regard,
we note that while she may have not correctly identified all the
charges she faced, she accurately told the doctor she had been accused
of two murders. In addition, she correctly identified the pending
charges when Dr. Seiden interviewed her.
Next, the defendant questions Dr. Armistead's
conclusion she could assist in her own defense because he noted in his
report that she wanted to hurt herself during the trial of her
co-defendant, Coleman. Dr. Seiden also referenced an alleged suicide
attempt by defendant that occurred during Coleman's trial.
Notwithstanding the defendant's statements concerning suicidal
ideation, our review of the record shows both doctors concluded such
ideation would not interfere with her ability to assist in her own
defense. In light of defendant's contention, we note it is hardly
surprising that a defendant facing a capital murder charge may be
depressed or contemplate suicide; as noted in the medical testimony,
the defendant was receiving a prescribed anti-depressant during her
incarceration pending trial. Moreover, the record shows that in an
addendum to his report, Dr. Seiden stated he reviewed supplemental
reports provided to him by various institutions and hospitals where
defendant resided before committing the present offense and that these
records “suggest that she exaggerated ․ details of her past history”
including multiple references to past suicide attempts. Trial Tr.,
vol. XI, p. 2365 (April 27, 2005).
Additionally, the defendant attempts to demonstrate
she was not competent to stand trial because several police reports
reveal that she gave inconsistent and sometimes implausible statements
concerning the crimes. In particular, the defendant points to the
fact she gave multiple versions of the incidents in an effort to
minimize her or her boyfriend's culpability. She contends this
evidence contradicted Dr. Seiden's belief she could assist counsel.
Accepting the defendant's contention in this regard for purposes of
argument, we observe such facts alone do not suggest she was unable to
assist counsel at trial.
Next, as evidence of her inability to comprehend
the charges or assist in her defense, appellate counsel calls our
attention to a letter the defendant wrote to the district attorney in
which she suggests her dissatisfaction with a plea offer trial counsel
tendered to her. The letter reads:
Good Evening Sir! I apologize to Mr McClatchey,
But this isn't true. But Sir let me put my point across please. If
I refused to take your offer of 2 life sentences, what in the world
would you Believe, I would ask my Lawer (which do not see eye to eye)
to come back with a much more offering, then you guy's asked me to
accept. Mr. McClatchey told me I'll Be Better off with life. Yes I
did shot & kill Terrance Blaze, but only because I was threatting and
Beatting up to do so. I'm asking would you, please disregard this
plead offering. Because I did not ask him to take this act. Thank
you and have a nice day.
Trial Tr., vol. V, p. 1098 (Feb. 6, 2004).9
Defense counsel maintains the incriminating content
of the letter demonstrates the defendant possessed no understanding of
the legal consequences relating to her role in the crimes and thereby
rendered her incompetent. After reviewing the defendant's
contention, we find no support for it. Although the letter suggests
the defendant may not have understood the legal subtleties relative to
the law regarding principals, in no way does it demonstrate she could
not assist counsel in her defense.
Finally, in addition to arguing the trial court
should have found the defendant incompetent irrespective of the sanity
commission's conclusion to the contrary, the defendant asserts that
additional evidence presented following the submission of the sanity
commission's reports should have prompted the trial court to
reconsider its earlier ruling. With that as her impetus, a week
prior to trial, defense counsel re-urged the motion to quash the
indictment, contending new evidence was available for the trial
court's consideration. Specifically, the defendant argues the trial
court should have considered the evidence her experts provided in
support of the motion to quash the indictment, alleging that FAS
rendered her functionally mentally retarded and hence ineligible for
the death penalty; she further contended that newly obtained
neuroimaging had revealed multiple areas of her brain were abnormal
She contends that in light of this evidence, the trial court should
have revisited the issue of whether she maintained the capacity to
Defendant further relies upon documents relating to the MRI and PET
scans produced at the hearing relating to her low intelligence and
Even assuming the defendant met the statutory
definition of mental retardation delineated in La.Code Crim. Proc.
art. 905.5.1, an issue ultimately unresolved below because defense
counsel did not present this issue to the jury, it would not
necessarily follow that she was incompetent to stand trial. Equating
competency, which addresses a defendant's ability to understand the
proceedings and to assist in her own defense, see La.Code Crim. Proc.
art. 641, with mental retardation, which acts as a mitigating
circumstance exempting a defendant from the death penalty, constitutes
an hyperbole and does not accord with this state's well-accepted
jurisprudence. Cf. State v. Brogdon, 426 So.2d 158, 168 (La.1983)
(“while subnormal intelligence is a relevant factor in assessing a
defendant's present capacity to stand trial, it is not of itself
dispositive of the issue․”). Notably, defendants with IQ's in the
60's have been shown competent to stand trial. State v. Brooks, 541
So.2d 801 (La.1989); State v. Charles, 450 So.2d 1287 (La.1984).
See also, State v. Bennett, 345 So.2d 1129, 1139 (La.1977) (on reh'g)
(“Unlike mental illness, which is a variable state, difficult to
measure retrospectively, mental retardation is a more static condition
and hence its effect upon defendant's capacity to stand trial can be
as easily determined now as it could have been contemporaneously with
Finally, as the State ably points out, the record
contains several letters the defendant authored while she was
incarcerated awaiting trial. Although these letters do not
demonstrate a sophisticated knowledge of the legal system, their
content supports the proposition that the defendant understood the
nature of the proceedings and the serious charges pending against her.12
In summation, members of the sanity commission
unanimously opined the defendant was competent. Moreover, even Dr.
Vigan, whose testimony defendant primarily relies upon in support of
this claim and who admitted he did not examine her to determine
competency, testified she understood her rights and was able to
communicate with her attorneys. Ultimately, Dr. Vigan conceded he
had not “specifically examined [defendant] for competence to stand
trial,” and had not “administered any competency to stand trial
tests.” Rather, he “assume[d] that the other doctors, Dr. Armistead,
Dr. Seiden, and Dr. Williams all have commented that she's competent
to proceed to trial.” Trial Tr., vol. XIX, p. 4197 (Nov. 10, 2005).
Finally, at the penalty phase, Dr. Vigan effectively conceded
defendant's competency, stating:
[T]wo sanity physicians evaluated her for
competency to stand trial, and they found her competent. So those
doctors would have examined her ability to understand the rights that
she has. She certainly ․ know[s] that she has a right to a trial and
a trial by jurors. She certainly knows she has a right to consult
with her attorneys, and she has been doing that and working with them.
And the sanity doctors have already found that she's competent to
proceed to trial. So I think she's-I would assume that she can
understand to the minimal at least what legal rights are about.
Trial Tr., vol. XXX, p. 6128 (Feb. 16, 2006).
Considering the totality of this evidence and the
trial court's personal observations of the defendant, we find nothing
suggests the trial court committed manifest error when it found the
defendant mentally competent to stand trial. This argument lacks
(Assignment of error 11)
Next, relying upon Atkins v. Virginia, 536 U.S.
304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) and Roper v. Simmons, 543
U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), defendant claims she
suffers from compromised intelligence and a diminished mental age as
a result of FAS. See supra, p. 52, n. 6 (explaining FAS).
Accordingly, she contends her death sentence constitutes excessive
punishment and must be vacated.
In support of her claim, defendant filed a “Motion
to Quash Indictment” in the trial court, alleging she possessed
“neurological and psychological deficiencies” that disqualified her
from the death penalty based on the Supreme Court's rationale in
Atkins (exempting mentally retarded persons from capital punishment)
and Roper (holding that the Eighth Amendment precludes capital
punishment for offenders under the age of 18 when they committed their
The State opposed the defendant's motion to quash,
arguing that “a factual defense to any charge (such as minority or
mental retardation at the time of the offense) is not a proper ground
for a motion to quash” and that the matter should be decided by a
jury. Trial Tr., vol. XII, p. 2580 (Sept. 23, 2005). Nevertheless,
the State did not oppose a pre-trial hearing on the motion so that it
could obtain discovery concerning the evidence defendant relied upon
on the issue. Id. Notwithstanding, the State firmly maintained that
its argument would remain “the same; neither Roper nor Atkins apply
to this case, and the court should not extend them ‘by analogy,’ and
cannot make any sort of pre-trial determination of a factual defense
via motion to quash.” Id.
The trial court conducted an extensive hearing on
defendant's motion to quash. Specifically, the trial court received
testimony from psychiatrist Dr. Richard Williams and psychologist Dr.
However, at the conclusion of the hearing, the trial court found no
legal basis existed for it to grant the motion to quash the capital
prosecution. It stated:
․ I have had a chance to carefully review that
motion [to quash] as well as the attached report from Dr. Vigan, which
is in conjunction, of course, with his testimony. I would note for
the record, of course, Code of Criminal Procedure, Article 532 through
533; and I will also note for the record the unrebutted testimony of
the IQ of Miss Holmes, which is 77 which is borderline. I understand
all of what I have heard today through the testimony of Dr. Vigan and
However, I conclude that as a matter of law that
there is no legal basis for me to grant the motion to quash.
Accordingly, motion to quash the indictment is denied in all respects.
If we get to the penalty phase, if we get to the
penalty phase, of course, the jury can hear all of the evidence
presented today as well as any other evidence, some of which the DA
may want to present. Motion denied.
Trial Tr., vol. XIX, pp. 4215-16 (Nov. 10, 2005).15
A week before trial, defendant filed a “Motion to
Re-Urge Motion to Quash Indictment” in which she claimed neuroimaging
of her brain revealed abnormalities and impairments that further
established she suffered from fetal alcohol syndrome which rendered
her ineligible for execution under Atkins and Roper. In response,
the State reiterated that the trial court lacked the authority to
grant the motion, arguing:
[La.Code Crim. Proc. art.] 905.5.1 is very clear
that defense counsel has to make the claim first that the defendant is
mentally retarded, which they haven't done; and second, before the
court ․ [can] make any sort of pretrial ruling, both the State and the
defense have to agree that so be done, and that wasn't done here
either. So I don't understand why we're even talking about mental
retardation here. Absent some sort of proper notice by the defense
that they're going to claim mental retardation defense and absent some
agreement by both parties, this court doesn't have any power to do
anything concerning mental retardation.
Trial Tr., vol. XIX, P. 4214 (Nov. 10, 2005).
The trial court agreed and denied the defendant's
re-urged motion, stating, “I believe there is no basis whatsoever to
quash the indictment even based on the new material submitted to the
Court.” Trial Tr., vol. XIX, p. 4268 (Jan. 31, 2006).
Defendant now argues the trial court should have
ruled on the merits of her mental retardation claim based upon FAS and
found her ineligible for the death penalty. We disagree.
La.Code Crim. Proc. art. 905.5.1, added to the Code
of Criminal Procedure by 2003 La. Acts 698 in response to Atkins,
provides the procedure for use in the event a defendant raises a claim
of mental retardation. In particular, La.Code Crim. Proc. art.
905.5.1 provides, in pertinent part:
C.(1) Any defendant in a capital case making a
claim of mental retardation shall prove the allegation by a
preponderance of the evidence. The jury shall try the issue of
mental retardation of a capital defendant during the capital
sentencing hearing unless the state and the defendant agree that the
issue is to be tried by the judge. If the state and the defendant
agree, the issue of mental retardation of a capital defendant may be
tried prior to trial by the judge alone. (Emphasis added).
In State v. Turner, 05-2425 (La.7/10/06), 936 So.2d
89, 96-97, cert. denied, 549 U.S. 1290, 127 S.Ct. 1841, 167 L.Ed.2d
337 (2007), we upheld the constitutionality of La.Code Crim. Proc.
art. 905.5.1. Specifically, we upheld the jury provision of art.
905.5.1 as follows:
If the State may consign to a jury the complex
factual and legal question of whether a defendant suffers from a
mental disease or defect rendering him incapable of distinguishing
between right and wrong and thereby exempting him from criminal
responsibility altogether, La.Rev.Stat. 14:14, then, a fortiori, the
State may assign to a jury the task of determining whether defendant
is mentally retarded and exempt, not from criminal culpability, but
from the death penalty․
* * *
Notwithstanding the concerns expressed by some
commentators and courts, absolutely no jurisprudence suggests that
requiring the jury rather than the court to decide whether the
defendant has established mental retardation violates due process or a
defendant's Eighth Amendment rights. Neither 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 any
requirement that a trial judge should in all cases make an initial
pretrial finding on the question of mental retardation, that policy
choice, whether wise or unwise, is for the Legislature.
Turner, 936 So.2d at 99. (Emphasis added)
In the present case, the record clearly shows the
State did not acquiesce to submitting the issue of mental retardation
to the trial judge. The record likewise establishes the defendant
never submitted the issue of mental retardation for jury
determination. Accordingly, not only did the trial court lack the
legal authority to quash the indictment based on the defendant's
allegations, the issue was never presented for determination during
the capital sentencing hearing. Therefore, defendant's assignment of
error lacks merit.
(Assignments of error 4 and 5)
The defendant first contends the State violated her
due process rights when it offered an alternate theory of the crime at
the trial of her co-defendant, Robert Coleman, and argued a different
theory of the crime to the jury in her trial. In a related matter,
the defendant further argues the trial court erred when it granted the
State's motion in limine preventing her from presenting any evidence
at either the guilt or penalty phase of the trial, revealing that
Coleman had been convicted of first-degree murder and sentenced to
Due process forbids a state from employing
inconsistent and irreconcilable theories to secure convictions against
individuals for the same offenses arising from the same event. Smith
v. Groose, 205 F.3d 1045, 1048-49 (8th Cir.2000), cert. denied, 531
U.S. 985, 121 S.Ct. 441, 148 L.Ed.2d 446 (2000)(convictions of
accomplices in a murder/robbery were obtained at separate trials
through diametrically opposed testimony from a third participant;
such manipulation of evidence rendered trial fundamentally unfair and
required reversal); compare Nichols v. Scott, 69 F.3d 1255, 1268-72
(5th Cir.1995)(guilty plea of one co-defendant does not preclude
murder prosecution of the other when it could not be determined whose
gun caused the fatal wound).
In support of her argument to this Court, the
defendant draws our attention to the United State Supreme Court's
recent decision in Bradshaw v. Stumpf, 545 U.S. 175, 125 S.Ct. 2398,
162 L.Ed.2d 143 (2005). There, Stumpf and his partner, Wesley, both
armed with guns, robbed Mr. and Mrs. Stout in their Ohio home; they
then shot the couple, and left them for dead. Police learned the
identities of the perpetrators, and Stumpf surrendered to the police.
After learning that Mr. Stout survived the shooting, Stumpf
confessed to shooting him twice in the head, but denied inflicting the
injuries that killed Mrs. Stout. Stumpf pleaded guilty, and
proceeded to the penalty phase, held before a three-judge panel, in
which he made a threefold argument in mitigation: (1) that he had
participated in the plot at the urging of Wesley; (2) that it was
Wesley who had fired the fatal shots into Mrs. Stout; and (3) that
his minor role in the murder militated against a death sentence. The
panel rejected Stumpf's arguments and sentenced him to death.
Subsequently, Wesley was successfully extradited to
Ohio where the same prosecutor tried the case before the same trial
judge. By the time of Wesley's separate trial, new evidence had
arisen since Stumpf's plea, namely, Wesley's cellmate, Eastman,
testified Wesley admitted to him that he fired the shots that killed
Mrs. Stout. The prosecutor argued that Wesley was the principal
offender in Mrs. Stout's murder; thus, he should be sentenced to
death. Wesley countered that the prosecutor had taken a contrary
position in Stumpf's penalty phase trial, and that Stumpf had been
sentenced to death for the crime. Wesley testified that Stumpf had
shot Mrs. Stout. Ultimately, the jury sentenced Wesley to life
imprisonment with the possibility of parole after 20 years. Stumpf,
545 U.S. at 180, 125 S.Ct. at 2404.
Thereafter, Stumpf, whose direct appeal was
pending, attempted to withdraw his guilty plea or vacate his death
sentence. Stumpf's action was based on the prosecution's argument at
Wesley's trial that Wesley had been responsible for Mrs. Stout's
death. Eventually, Stumpf's case was considered in the United States
Supreme Court where he urged the invalidity of his guilty plea based
on his claim he was unaware of the specific intent element to the
aggravated murder charge, and that his due process rights had been
violated by the state's deliberate action in securing convictions of
both Wesley and him for the same crime, using inconsistent theories.
Stumpf, 545 U.S. at 182, 125 S.Ct. at 2405.
The Supreme Court upheld Stumpf's guilty plea as
valid, and found he exhibited the requisite specific intent to support
a plea of guilty to aggravated murder, specifically when he put a gun
to Mr. Stout's head and fired twice. The Court held that the
aggravated murder charge did not require any showing that Stumpf had
personally shot Mrs. Stout; rather, the Court observed Ohio law
considers aiders and abettors equally in violation of the aggravated
murder statute, as long as the aiding and abetting is done with the
specific intent to cause death. Id., 545 U.S. at 184, 125 S.Ct. at
2406. Finding that Stumpf and Wesley shared the same deadly intent,
the Court found it immaterial which of the two men actually shot Mrs.
Stout and upheld the guilty plea, noting that:
Stumpf and Wesley had gone to the Stouts' home
together, carrying guns and intending to commit armed robbery.
Stumpf, by his own admission, shot Mr. Stout in the head at close
range. Taken together, these facts could show that Wesley and Stumpf
had together agreed to kill both of the Stouts in order to leave no
witnesses to the crime. And that, in turn, could make both men
guilty of aggravated murder regardless of who actually killed Mrs.
Stumpf, 545 U.S. at 184, 125 S.Ct. at 2406
(emphasis in original).
The Supreme Court's reasoning with respect to
principals to capital murder comports with this Court's holding in
State v. Anthony, 98-0406 (La.4/11/00), 776 So.2d 376, 385-87 (holding
that the State is not required to show defendant actually pulled the
trigger in order to sentence him to death in a first-degree murder
prosecution; instead to carry its burden of proof successfully, the
State must prove defendant acted in concert with his co-perpetrators,
that defendant had the specific intent to kill, and that one of the
aggravating elements enumerated in the first-degree murder statute was
Addressing Stumpf's due process rights, the Court
opined the prosecutor's use of allegedly inconsistent theories “may
have a more direct effect on Stumpf's sentence” because arguably “the
sentencing panel's conclusion about Stumpf's principal role in the
offense was material to its sentencing determination.” Id., 545 U.S.
at 187, 125 S.Ct. at 2407-08. Nevertheless, the Court deemed the
issue premature and remanded the case to the Sixth Circuit Court of
Appeals to consider the question of how Eastman's testimony and the
prosecutor's conduct in the Stumpf and Wesley cases relate to Stumpf's
death sentence in particular. Id., 545 U.S. at 187, 125 S.Ct. at
In the present case, the defendant contends that in
Coleman's trial, the State argued he was the individual who shot
Julian Brandon and inflicted the majority of the crime scene carnage.
Referring to blood spatter on Coleman's boots, the State argued,
“That puts those boots on the killer shoving that gun up under [Rev.
Brandon's] chin and pulling the trigger.” Brief for the Appellant,
p. 14, n. 17. The State also presented evidence that Coleman
admitted shooting Julian Brandon to two of his cellmates. During its
closing argument at the penalty phase in the Coleman trial, the State
described Coleman “butchering” Julian Brandon and described his
conduct as follows:
․ After a gun shot wound, probably after several
killing stab wounds to the chest all of which didn't satisfy. And
then he's got to saw into his neck. He's sawing in the neck of ․ our
must vulnerable citizens. That's why you need to kill him. His
attack was done without mercy.
Brief for the Appellant, p. 15.
In argument to us, the defendant contends the State
“abruptly changed course” at her trial. While maintaining it was
only required to prove her participation as a principal, she argues
the State relied heavily on the statement in which she admitted to
shooting Julian Brandon. At the defendant's trial, the State also
presented testimony from Caddo Parish Sheriff's Office (CPSO) Captain
Bobby Abraham concerning his interview with defendant in which “she
describe[d] herself basically as the main actor once inside” the
Brandons' residence. Trial Tr., vol. XXVI, p. 5430 (Feb. 12, 2006).
In addition, CPSO Detective Kay Ward testified about the defendant's
statement in which she (defendant) claimed she shot both Mr. and Mrs.
Brandon and that “Robert [Coleman] was there but he didn't participate
in the killing.” Trial Tr., vol. XXVI, p. 5508 (Feb. 12, 2006).
After the defendant argued at the penalty phase that her diminished
mental capacity rendered her less culpable than Coleman, the State
responded in its rebuttal with a recapitulation of violent episodes
earlier during the defendant's life and stated that Coleman:
wasn't the catalyst that brought this murder before
you. Robert Coleman wasn't there when she battered the corrections
officer. Robert Coleman wasn't there when she took a piece of glass
and slit the corrections officer. He wasn't there when she was
killing a kitten.
The signs of her violence have been manifesting for
years. She was like a time bomb that finally went off.
Trial Tr., vol. XXX, p. 6236 (Feb. 16, 2006).
As borne out in the record and her brief to this
Court, defendant's focus on selective portions of the evidence
presented and the State's closing arguments at both trials is
misleading. As an initial matter, defendant concedes in her brief
that at “Coleman's trial, the prosecution argued that Coleman and
Holmes both played an active role in the murder of Mr. Brandon [and] ․
charged Coleman as a principal in the alternative.” Brief for the
Appellant, p. 14. In is abundantly clear that the State was free to
speculate which of the defendant's statements was the most truthful
concerning her actual participation in the shooting of Julian Brandon.
More importantly, during closing argument at the guilt phase, the
State argued that even if the defendant was merely “policing up the
crime scene making sure nobody gets caught,” she was concerned in the
commission of the offense and thus guilty as a principal. Trial Tr.,
vol. XXVIII, p. 5777 (Feb. 14, 2006). During rebuttal closing at the
guilt phase, the State further argued:
We can't say which slice she inflicted, which stab
she inflicted, which one of the times the trigger was pulled her
finger was on it. But we can tell you that she was there helping,
participating. It was too much for one person and that she wanted
them dead because she didn't wear a mask and all the other things
we've told you. When you realize that she had the specific intent to
kill, she was involved in the killing and as the defense has conceded
the victims were over 65, it was during an armed robbery, a burglary,
and there was more than one person, the only appropriate verdict is
guilty as charged of first degree murder.
Trial Tr., vol. XXVIII, pp. 5812-13 (Feb. 14,
Similarly at the penalty phase, rather than arguing
that defendant was the shooter, as she claimed in one of her
statements, counsel for the State argued:
․ I don't think we're ever going to have an answer
to whose hand the gun was in as it relates to the Brandons and whose
particular hand the knife was in as it relates to the Brandons, you
have seen what the evidence does show. And that's simply coming back
to this concept that they participated part and parcel together from
start to finish.
Trial Tr., vol. XXX, p. 6236 (Feb. 16, 2006).
It is axiomatic that at the defendant's trial, the
State focused upon her culpability while at Coleman's trial, the
evidence centered on his conduct. Cf. State v. Lavalais, 95-0320
(La.11/25/96), 685 So.2d 1048, 1056-57, cert. denied, 522 U.S. 825,
118 S.Ct. 85, 139 L.Ed.2d 42 (1997) (“Although the state's positions
in defendant's trial and Smith's trial may appear inconsistent at
first glance, this appearance results from the fact that the state's
emphasis as to culpability was different in the two trials ․ [a]nd
that any inconsistencies in the state's position in the two trials
does not rise to the level of fundamental unfairness.”)(footnote
In State v. Scott, 04-1312 (La.1/19/06), 921 So.2d
904, cert. denied, 549 U.S. 858, 127 S.Ct. 137, 166 L.Ed.2d 100
(2006), we considered and rejected a similar argument in response to
the defense claim that the State had adopted an inconsistent theory to
obtain a first-degree murder conviction and death sentence against
Scott's co-defendant, James Dunn. There we remarked, finding that
in Dunn's trial did not commit the prosecution and
therefore jurors to a single theory of Dunn's guilt for the double
murder which diametrically opposed and wholly negated any theory of
defendant's legal or moral culpability arising out of his complicity
in the murders as a principal “concerned” in the commission of the
offense. La. R.S. 14:24. The remarks otherwise constitute mere
argument of counsel, their understanding of what the facts showed, and
thus, not evidence and not admissions of fact within the personal
knowledge of a party opponent and that party's representatives for
purposes of La.C.E. art. 801(D)(3)(a). This claim fails on the
Scott, 921 So.2d at 958.
In the present case, as in Scott and Lavalais, the
State neither set forth inconsistent nor mutually exclusive theories
of the crime at defendant's and Coleman's trials. To the contrary,
it is clear the State merely emphasized each offender's culpability at
their respective trials. Accordingly, we find no merit to
In a related issue, the defendant contends the
trial court erred when it granted the State's motion in limine to
exclude any evidence that another jury had convicted Coleman of
first-degree murder and sentenced him to death for his role in the
crime. In its written motion in limine, the State asked the trial
court to exclude the evidence at both phases of the defendant's trial,
claiming “[i]t is a long established principle of Louisiana law that
evidence that another person has been or is being prosecuted for the
same offense is incompetent and inadmissible.” (Citation omitted).
Trial Tr., vol. XVII, p. 3673 (Jan. 27, 2006). Over defense
objection, the trial court granted the State's motion as it related to
the guilt phase and deferred ruling on whether Coleman's conviction
and sentence could be introduced at the penalty phase.
At the conclusion of evidence at the penalty phase,
the defense proffered into the record “the minutes from the Robert
Coleman case showing that he was convicted and that he would receive
the death penalty.” Trial Tr., vol. XXX, p. 6208 (Feb. 16, 2006).
The trial court admitted the minutes, but stated that “[t]he jury does
not get to see that however.” Id. Defense counsel responded, “Yes,
sir, I understand. That was because of the motion in limine that the
State filed.” Id.
In its motion for a new trial, defense counsel
reurged the issue, and in its ruling denying the motion, the trial
․ The fact of the matter, I believe the trial
record will clearly bear this out, is that neither side wanted any
evidence of any results of Coleman's trial.
So, it is really disingenuous to now argue that
defense wanted to present to the jury evidence of Coleman's guilt
verdict and death penalty verdict. That was not something the
defense wanted. They fought against that. Actually it was an
agreement by both sides that it would be going outside the record of
admissible evidence to present any results on Robert Coleman. So,
the record needs to be made clear so that a reviewing judge years from
now will not be misled․
Trial Tr., vol. XXX, pp. 6265-66 (Feb. 21, 2006).
As an initial matter, we observe, contrary to the
trial court's statement otherwise, nothing in the record shows the
defense agreed with the State's motion in limine to exclude the
evidence. Correlatively, we further note the State does not point to
any support for the trial court's comment in its brief to this Court.
Rather, the State contends the trial court's ruling was correct
because it prevented the defense “from attempting to lessen the jury's
sense of responsibility for convicting and sentencing Brandy Holmes by
implying or arguing that since Coleman had received the ultimate
sentence Brandy Holmes should get a pass on her sentence.” Brief for
the Respondent, p. 19.
After reviewing the record in light of the
assertions of counsel, we find the State's argument that the evidence
was irrelevant at both phases of trial is fully established. As
discussed supra, the State did not offer inconsistent theories of the
offense at defendant's and Coleman's separate trials. We further
note the record fully shows the defense was permitted to cross-examine
witnesses and extensively argue Coleman's role in the crime and both
parties' relative culpability. Moreover, La.Code Crim. Proc. art.
905.2 provides that “[t]he sentencing hearing shall focus on the
circumstances of the offense, the character and propensities of the
offender, and the impact that the death of the victim has had on the
family members.” (Emphasis added). Accordingly, evidence relating
to Coleman's criminal punishment for his role in the offense was
irrelevant and could have very well diverted the jury from the task
before it, namely, the character and propensities of the defendant.
After reviewing the jurisprudence, we find the
trial court's ruling in the present case accords with State v.
Brogdon, 457 So.2d 616 (La.1984), cert. denied, 471 U.S. 1111, 105
S.Ct. 2345, 85 L.Ed.2d 862 (1985). In Brogdon, the defendant
attempted to call his co-defendant as a witness in his capital
sentencing phase; the co-defendant had been previously tried for the
same first-degree murder, convicted, and sentenced to life
imprisonment, after the jury was unable to reach a unanimous decision
at his penalty phase. Brogdon argued he was entitled to have the
jury consider that his codefendant received a life sentence as a
mitigating circumstance or as a meaningful basis for deciding whether
his case fell within the category of capital or non-capital
punishment. Brogdon, 457 So.2d at 625-26. The trial court
disagreed, finding the co-defendant's sentence was irrelevant. We
upheld that decision of the trial court, holding the Legislature did
not intend “to require a detailed comparative analysis of other first
degree murder cases and sentences by the jury in a capital sentence
hearing.” Id., 457 So.2d at 626. Moreover, we observed in Brogdon
the function of comparative analysis falls to this Court as part of
its Rule 28 17
review of capital sentences. Id. Accordingly, in the present case,
the trial court was eminently correct when it prohibited defense
counsel from arguing that jurors should spare defendant's life solely
because another jury had sentenced Coleman to death and thereby
assigned to him the highest degree of moral culpability for the
offense. Brogdon, 457 So.2d at 616. Therefore, these assignments of
error lack merit.
MOTION TO SUPPRESS
(Assignments of error 13-15)
In these assignments of error, the defendant argues
the trial court erred when it denied her motion to suppress her
multiple inculpatory statements about the crimes. Specifically, she
alleges the statements were given in violation of the Fifth and Sixth
Amendments of the United States Constitution because she did not
voluntarily waive her rights. She further contends she did not want
to discuss the offenses. In addition, she maintains the police
illegally coerced the statements when they employed “manipulative
tactics ․ on a functionally retarded woman with significant brain
damage․” Brief for the Appellant, p. 34. Finally, the defendant
asserts her statements about the offense were involuntary because her
interrogators repeatedly claimed they had evidence implicating her
brother in the crime. She contends the repeated assertions of her
interrogators were untruthful and thus rendered her subsequent
statement about the offense involuntary.
It is hornbook law that before the State may
introduce a confession into evidence, it must demonstrate the
statement was free and voluntary and not the product of fear, duress,
intimidation, menace, threats, inducements or promises. La.Rev.Stat.
§ 15:451; La.Code Crim. Proc. art. 703(D); State v. Simmons, 443
So.2d 512, 515 (La.1983). If a statement is a product of custodial
interrogation, the State must make a threefold showing: first, that
the person was advised before questioning of his right to remain
silent; second, that the person was told that any statement he makes
may be used against him; and, third that the person was counseled
that he has aright to an attorney, either retained or appointed.
Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16
L.Ed.2d 694 (1966). When claims of police misconduct are raised, the
State must specifically rebut the allegations. State v. Vessell, 450
So.2d 938, 942-943 (La.1984). A trial court's finding as to the free
and voluntary nature of a statement carries great weight and will not
be disturbed unless the evidence fails to support the trial court's
determination. State v. Benoit, 440 So.2d 129, 131 (La.1983).
Credibility determinations lie within the sound discretion of the
trial court and its rulings will not be disturbed unless clearly
contrary to the evidence. Vessell, 450 So.2d at 943. When deciding
whether a statement is knowing and voluntary, a court considers the
totality of circumstances under which it is made, and any inducement
is merely one factor in the analysis. State v. Lavalais, 685 So.2d at
1053; State v. Lewis, 539 So.2d 1199, 1205 (La.1989).
At the hearing on the defendant's motion to
suppress, Detective Kay Ward, testified concerning her investigation
of defendant. Det. Ward stated the defendant became a suspect after
she implicated herself in the murder during conversations with
neighbors and attempted to sell some jewelry purportedly stolen from
the Brandons' residence. On the evening of January 5, 2003, Ward,
accompanied by Officers Sheila Hostnick, Bobby Abraham and Bill
Duncan, went to the mobile home where the defendant was staying with
her mother. There they encountered the defendant, her mother Brenda
Bruce, her 15-year-old brother, Sean George, and Robert Coleman. All
four agreed to accompany the officers to the sheriff's office. After
participating in the interviews of Bruce, George and Coleman, Ward
interviewed the defendant.
From the outset, Ward advised the defendant of the
customary Miranda warnings. The defendant indicated she understood
the Miranda warnings, signed a waiver of rights form and agreed to
give a statement at 12:23 a.m. When the defendant implicated her
friend, Johnny Wright, in the murder, Ward decided to record the
statement. Ward described defendant as “very cooperative” and stated
that at no time she requested to stop the interview or request the
presence of counsel.
Based on the initial information defendant had
given her, Ward, accompanied by Officer Hostnick and Detective Charles
Bradford, left in an effort to locate Johnny Wright while defendant
remained at the sheriff's office. After Wright was located and
interviewed and his involvement in the present crime was explored,
Ward returned and took another statement from defendant at
approximately 3:00 a.m. Before making this statement, defendant was
Mirandized again and waived her rights. In this statement, the
defendant said she had been at the Brandons' residence when the victim
had been killed. Ward also learned that while she (Ward) was gone
looking for Wright, defendant had told Captain Abraham and Lieutenant
Duncan that the Brandons' burned credit cards could be found near the
dead body of Terrance Blaze. Ward stated that while she attempted to
Brandy had told Captain Abraham while he was
talking to Brandy and Lieutenant Duncan that-and they were talking
about Mr. Brandon's credit cards. And Captain Abraham had asked
Brandy what happened to the credit cards, and she said she burned
them. And he said, where? And she said, on a dirt road. He said,
can you show me? And she said, if I show you that, I have to show
you something else. And he said, what? And she said, another death
Trial Tr., Vol. XIX, p. 4068 (July 21, 2005).18
At approximately 4:00 a.m., defendant led Ward and
Sergeant Gary Frake to Blaze's body. It was located approximately
one quarter of a mile from the mobile home of defendant's mother.
Upon returning to the sheriff's office, Ward took another statement
from defendant, this one concerning Blaze's murder. Again, before
giving the statement, Ward administered Miranda warnings, and the
defendant waived her rights.
At the conclusion of this interview, Ward left her
office to confer with Captain Abraham. When Ward returned to the
office, she observed that the cassette tape of the most recent
interviews, which she thought she had labeled, now appeared blank.
Ward then learned that after she left her office, defendant left the
interview room to use the restroom. Accompanied by Officer Hostnick,
Ward entered the women's restroom where she found the cassette in the
garbage can; the label had been peeled off and the recording tape had
been removed. Ward later learned that two of the waiver of rights
forms defendant had executed had also been destroyed. When Ward
asked the defendant if she would give another statement, defendant
responded that she was tired. Defendant later admitted to Captain
Abraham that after Ward had left the room, she had opened the drawer
where the blank cassette tapes were kept and substituted a blank tape
for the one she had destroyed and left in the bathroom. At that
time, Ward also observed defendant was no longer wearing a bracelet
and ring (presumably stolen from the Brandons' residence) which she
had worn earlier during the first interview.
At 8:26 a.m., the defendant gave another statement
to Ward. Again, defendant gave no indication she did not want to
talk or exercise any of her Miranda rights. In this statement, the
defendant claimed she went to the Brandons' residence with Johnny
Wright after she told him she needed money to return to Mississippi.
After Reverend Brandon opened the door, Wright burst into the home and
shot him. Defendant then demanded account numbers from Mrs. Brandon
and later tried to shoot her, but the gun jammed; ultimately, Wright
shot her as well. Defendant saw Mr. Brandon getting up and retrieved
a knife and “cut” him. She also maintained that Coleman was at her
mother's house during the violent entry into the Brandon home and
murder and had no idea that she and Wright were committing the
offense. Defendant was subsequently booked into the Caddo
Correctional Center (“CCC”).
The following day, Ward, accompanied by Detective
Jeff Ivey contacted the defendant. She executed yet another waiver
of rights form before making a final statement. An underlying theme
of this statement was that the detectives claimed to know that
defendant's brother, Sean George, was present at the Brandon crime
scene, a fact she adamantly and repeatedly denied. However, the
allegations clearly upset defendant, so much so that she exposed
Coleman's participation again. The detectives also focused
considerable attention on the gun and tried to ascertain its location;
the detectives' attempts were fruitless. The statement concluded
with defendant's gratuitous (and apparently false) announcement that
she was pregnant. Ward made it clear that throughout her multiple
contacts with defendant, at no time did anyone threaten or coerce the
defendant. She further stated the defendant never asked for an
attorney and was provided with the opportunity to eat, drink and use
Corporal Sheila Hostnick also testified at the
suppression hearing and corroborated Ward's testimony concerning the
defendant's initial interview and similarly identified the waiver of
rights form the defendant executed. Like Ward, Hostnick testified
the defendant was very cooperative and she was neither threatened nor
coerced into making any statement. Hostnick also described leaving
the sheriff's office to locate Johnny Wright and returning some time
later only to learn that defendant had given a different statement
about the crime to Captain Abraham. In that statement, the defendant
provided information about the Blaze homicide. Hostnick did not
accompany the defendant and Ward to the Blaze crime scene. However,
much later that morning, she transported the defendant to the Caddo
Correctional Center, where the defendant was charged with murder.
Also testifying at the motion to suppress hearing
was Sergeant Gary Frake.19
Frake accompanied Detective Ward and the defendant to the Terrance
Blaze crime scene. Later, after Ward had left her office to confer
with Captain Abraham, defendant asked Frake if she could use the
bathroom. After Ward later informed him that she suspected that the
cassette tape used to record the most recent interview was missing,
Frake told her that he had heard the toilet flush several times while
the defendant was in the restroom. At no time during the
investigation did Frake observe anybody threaten, coerce or make
promises to the defendant.
Captain Bobby Abraham supervised the investigation
and testified that based on information defendant had given other
officers during the initial interrogation, Ward, Hostnick and Bradford
left the sheriff's office to locate suspect Johnny Wright. While the
other officers were looking for Wright, Abraham entered Ward's office
and approached defendant, telling her that he did not “quite believe
the story that she had told Detective Ward and Hostnick earlier.”
Trial Tr., vol. XIX, p. 4115 (July 21, 2005). Defendant then told
Abraham that she participated in the violent entry into the Brandon
home with both Wright and her boyfriend, Coleman. Defendant
continued that after she brandished a pistol to shoot Reverend
Brandon, she shot him when he wrestled with her for control of the
gun. Defendant claimed she and Coleman then confronted Mrs. Brandon;
after taking two of her credit cards, the defendant placed a pillow
over Mrs. Brandon's head and shot her as well. When defendant heard
Reverend Brandon was still breathing, she went to the Brandons'
kitchen where she armed herself with a knife and cut his throat.
Defendant then said she exited through the rear door of the Brandons'
residence and unsuccessfully attempted to use their credit cards at a
neighborhood Hibernia Bank. Defendant told him she later burned the
credit cards and left them off of Roy Road. Defendant then told
Abraham that he would be “shocked” when she took him to the area where
she had burned the credit cards because “there was another body at
that location also.” Id., pp. 4117-18. Because Abraham was
responsible for supervising the investigation, rather than conducting
interrogations, he did not record this interview, but exited Ward's
office and requested that Lieutenant Bill Duncan return to the office
with him. In Duncan's presence, the defendant then gave
substantially the same statement about the murder albeit going “into a
little more detail as to what happened.” Id. Abraham explained:
․ She went into more detail about where Mr. Brandon
was when she cut him and when she shot him on the floor area of the
The only other difference was she told us that when
she shot Mrs. Brandon, that the first time she pulled the trigger, the
gun jammed. And she showed a motion and showed us how she racked the
gun back and shot Mrs. Brandon that time. And the second time is
when she put the pillow over her face. Other than that, it was the
Id., p. 4118.
This statement, too, was not recorded.20
Abraham stated that before he confronted defendant, Ward had informed
him that she had administered Miranda warnings. Moreover, Abraham
stated the defendant personally confirmed to him that she had been
advised of her rights.
Abraham also testified about confronting the
defendant regarding the cassette tape she had destroyed in the
bathroom after temporarily being left alone in Ward's office.
Defendant initially blamed Ward for the tape's destruction because the
detective “knew I was a criminal when she left the tape in the office
here with me.” Id., p. 4120. The defendant then explained to
Abraham that after observing Ward leave the cassette with her
incriminating statement on the desk, she (defendant) replaced it with
a blank tape from inside the officer's desk drawer and then took the
original tape to the bathroom, where she destroyed it.
Abraham testified he never observed the defendant
being threatened or coerced before making her statement to him.
Rather, he opined she may have been motivated to confess out of
concern for her mother and brother. Before making her statement to
him, the defendant told Captain Abraham that neither family member was
involved in anything to do with the homicide; consequently, the
defendant urged Abraham to allow them to go home. Abraham responded
that if that was true, he would permit them to leave, but that
defendant would have to “tell ․ what happened.” Id., p. 4121.
After hearing the detailed testimony about the
defendant's various statements, the trial court denied the defendant's
motion to suppress. Addressing the defendant's allegations, the
trial court stated:
The fact of the matter is that, and the evidence
clearly shows, that Ms. Holmes was advised of her rights, her
constitutional rights in accordance with the Miranda decision at the
very outset. And then she was also readvised numerous times
throughout the interviews with her. I believe that she had a
sufficient understanding of her rights and I believe that she
intelligently waived her Fifth Amendment right to remain silent․
․ [I]t is alleged by defense that inculpatory
statements made by her while in custody were obtained through
interrogation after she invoked her Fifth Amendment right to remain
silent and her Sixth Amendment right to have the assistance of
counsel. There is absolutely no evidence whatsoever to suggest that
at any point she invoked her Fifth Amendment right to remain silent,
and at no time did she invoke her right to have assistance of counsel.
Edwards versus Arizona clearly doesn't apply․
Specifically in listening to the testimony and
evidence in this case, I conclude that Detective Kay Ward with the
Caddo sheriff's office, Corporal Sheila Hostnick, Sergeant Gary Frake,
Captain Bobby Abraham, and Lieutenant Duncan are all credible
witnesses; and I accept their testimony as truthful.
Id., pp. 4137-38.
The trial court further concluded that defendant's
act of destroying the cassette tape in which she made her most
inculpatory recorded statement and the waiver of rights forms belied
any inferences that the investigating officers used undue force or
coercion. In fact, the trial court found that “officers did not
exert enough supervision and control over Ms. Holmes during the
interrogation process,” which led to her “deceptive acts, taking the
tapes and the rights forms going to the bathroom, going into that
room unattended and destroying the evidence.” Id., p. 4139. The
trial court also countenanced any misrepresentations made by
detectives concerning the physical evidence they possessed, stating
that “deceptiveness as an interrogation tactic and interrogation
strategy is not illegal and it's not improper.” Id. In light of the
testimony and the documents introduced at the hearing, the trial court
concluded there was “absolutely no evidence” to support the
allegations in the motion to suppress. Id., p. 4140.
After carefully examining the arguments of counsel,
we find the record and the law fully support the trial court's ruling.
As an initial matter, we observe both the signed waiver of rights
form and testimony from both Ward and Hostnick demonstrated the
defendant had been administered Miranda warnings and waived her
Miranda rights. No requirement exists for the State to advise a
defendant that she was a suspect in a first-degree murder for her to
execute a knowing waiver of rights. See, e.g., Patterson v.
Illinois, 487 U.S. 285, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988)
(Miranda warnings alone sufficiently apprise the defendant of his
Sixth Amendment right to counsel and of the consequences of abandoning
that right; no additional or refined warnings needed in this
context); cf. La.Code Crim. Proc. art. 218.1 (when a person has been
arrested, the police must advise him “fully of the reason for his
arrest or detention․”).
Moreover, while not dispositive of the issue of
whether the defendant's confession was illegally coerced, the fact
that the investigating officers administered Miranda warnings several
times during the interrogation militates in favor of the State's
assertion that the defendant's confessions were voluntarily given.
See e.g., United States v. Huerta, 239 F.3d 865, 871-72 (7th Cir.2001)
(confession voluntary in part because defendant received Miranda
warnings three times and executed written waiver); Rook v. Rice, 783
F.2d 401, 404-05 (4th Cir.1986) (confession voluntary despite
defendant's low intelligence, 7th grade education, and statement by
police that “the only thing that could help him was to tell the truth”
because he was given Miranda warnings twice and indicated that he
Furthermore, despite the defendant's appellate
claim that her low intelligence rendered her wavier of rights and
subsequent statements involuntary, well established jurisprudence from
this state shows otherwise. See e.g., State v. Green, 94-0887
(La.5/22/95), 655 So.2d 272, 278-84 (La.1995) (mildly retarded
defendant's waiver of rights was knowing and intelligent, even though
psychologist testified defendant was unable to comprehend his rights;
psychologist also testified defendant was educable and could be made
to understand rights, police officers testified defendant understood
his rights in part because of his prior criminal history); State v.
Istre, 407 So.2d 1183, 1186-87 (La.1981) (19-year-old who had IQ of 68
and who did not know his own age intelligently waived rights, which
were explained in simplistic terms that he apparently understood);
see also State v. Brown, 414 So.2d 689, 696 (La.1982) (“ ‘[M]oderate
mental retardation and low intelligence or illiteracy do not of
themselves vitiate the ability to knowingly and intelligently waive
constitutional rights and make a free and voluntary confession.’ ”)
Turning now to the defendant's contention that she
confessed to Abraham only to obtain the release of her mother and
brother, the record clearly shows the officer testified that he
truthfully told her merely that if, indeed, these family members
played no part in the murder, that they could return home.
Furthermore, we note that a paramedic who responded to the crime scene
reported that Mrs. Brandon had indicated two Caucasian persons were
responsible for the attack; Coleman, defendant's co-defendant, is
African American. Thus, the record supports that it was at least
possible at that point of the investigation that Detective Ward
suspected that defendant's brother had played a role in the offense.
Moreover, the record further shows Detective Ward had previously
investigated the defendant and her brother in connection with a
burglary in the neighborhood.
Considering the above stated factual scenario and
notwithstanding the defendant's motive for her confession, appellate
courts have consistently held that “confessions given in response to
exhortations to consider the health, well-being and liberty of close
relatives are admissible.” State v. Massey, 535 So.2d 1135, 1141
(La.App. 2 Cir.1988) (citing State v. Baylis, 388 So.2d 713, 716
(La.1980); State v. Weinberg, 364 So.2d 964, 970 (La.1978)).
Finally, even assuming that Ward and Ivey knowingly
lied when they insisted that they had evidence placing the defendant's
brother inside the Brandons' residence, such interrogation techniques
have been consistently upheld. See Frazier v. Cupp, 394 U.S. 731,
739, 89 S.Ct. 1420, 1425, 22 L.Ed.2d 684 (1969) (“fact that the police
misrepresented [a co-perpetrator's] statements” held “insufficient ․
to make [an] otherwise voluntary confession inadmissible.”); Hawkins
v. Lynaugh, 844 F.2d 1132 (5th Cir.1988) (mere “trickery” alone will
not necessarily invalidate a confession); State v. Sanford, 569 So.2d
147, 152 (La.App. 1 Cir.1990), writ denied, 623 So.2d 1299 (La.1993)
(same); State v. Horton, 479 So.2d 528, 530 (La.App. 1 Cir.1985),
writ denied, 493 So.2d 1215 (La.1986) (holding a confession free and
voluntary despite impetus the police provided when officers informed
defendant that an accomplice had implicated defendant in murder); see
also Miriam S. Gohara, A Lie for a Lie: False Confessions and the
Case for Reconsidering the Legality of Deceptive Interrogation
Techniques, 33 Fordham Urb. L.J. 791, 805-06 (2006) (“Few federal
courts have circumscribed the use of specific deceptive interrogation
techniques, and only in rare cases have federal courts deemed
deceptive interrogation practices coercive․ Interrogations employing
false or fabricated evidence where interrogators have misled suspects
to believe that police possessed inculpatory evidence, including
physical evidence or accomplices' confessions have generally been held
to be voluntary.”). After thoroughly reviewing the record and the
defendant's contentions, we find the defendant has not established any
basis for suppression of her multiple statements.
GUILT PHASE: STATE'S MOTION IN LIMINE
(Assignment of error 12)
The defendant next argues the trial court erred
when it granted the State's motion in limine to prevent her from
introducing any evidence of mental deficit or fetal alcohol syndrome
(FAS) at the guilt phase. After hearing oral argument on the issue,
the trial court granted the State's motion. Explaining its ruling,
the trial court stated:
It is clear that Ms. Holmes has tendered a plea of
not guilty. Period. She has not pled not guilty and not guilty by
reason of insanity. Accordingly, she may not introduce evidence of
insanity or mental defect at the time of the offense during the guilt
Trial Tr., vol. XIX, p. 4259 (Nov. 10, 2005).
In her motion for a new trial, the defendant
revisited the trial court's earlier ruling, alleging she should have
been permitted to introduce evidence of diminished mental capacity,
specifically evidence that she suffered the effects of FAS. The
defendant premised her argument on the claim that the exclusion of
this evidence during the guilt phase denied her the right to present a
defense by introducing “evidence which would have allowed her to
counter and explain the State's evidence against her, including but
not limited to her confessions and/or statements to various law
enforcement officers.” Trial Tr., vol. XVIII, p. 3957 (Feb. 21,
2006). Defendant further claimed the trial court's ruling permitted
the State “to use her mental defects against her, while preventing
defendant from either testifying or presenting any evidence to explain
her appearance, mannerisms and lack of understanding of any abstract
concepts.” Id. In its ruling denying the new trial motion, the trial
court restated that “there is no entitlement by defense, again, to
present evidence during the guilt phase of fetal alcohol syndrome.”
Trial Tr., vol. XXX, p. 6267 (Feb. 21, 2006).
In argument to this Court, the defendant claims
that given her penchant for story telling and exaggeration, evidence
that she suffered from FAS could have explained her “susceptibility to
manipulation, her inability to distinguish the truth from lies, and
inappropriate expressions and behavior due to her limited capacity to
understand what is appropriate in any given situation.” Brief for
the Appellant, p. 41.
La.Code Crim. Proc. art. 651 provides in part:
“When a defendant is tried upon a plea of ‘not guilty,’ evidence of
insanity or mental defect at the time of the offense shall not be
admissible.” Under La.Rev.Stat. § 14:14, the Louisiana codification
of the M'Naughten rule,21
an offender is exempt from criminal responsibility only if he is
incapable of distinguishing between right and wrong with reference to
the conduct in question. As a result, evidence of a mental defect
which does not meet the M'Naughten definition of insanity cannot
negate a specific intent to commit a crime and reduce the degree of
the offense. See State v. Deboue, 552 So.2d 355, 366 (La.1989),
cert. denied, 498 U.S. 881, 111 S.Ct. 215, 112 L.Ed.2d 174 (1990)
(while not claiming insanity at commission of the murders, defendant
argued in vain that mental retardation rendered him incapable of
forming specific intent for aggravated burglary of the murder victims'
home); State v. Nelson, 459 So.2d 510, 516-17 (La.1984), 471 U.S.
1030, 105 S.Ct. 2050, 85 L.Ed.2d 322 (1985) (no error disallowing
defense questions to psychiatrist designed to show the accused's
mental defect falling short of M'Naughten ); State v. Lecompte, 371
So.2d 239, 245 (La.1979) (on reh'g) (“The real danger in permitting
psychiatric evidence of mental or emotional disorders short of
insanity to negate intent is to practically destroy the M'Naughten
rule and to clutter practically every trial with some sort of expert
opinion evidence as to whether the defendant possessed the requisite
Notwithstanding the operation of article 651 of the
Code of Criminal Procedure, we have repeatedly recognized a
defendant's constitutional right to present a defense. See State v.
Van Winkle, 94-0947 (La.6/30/95), 658 So.2d 198, 201; State v.
Gremillion, 542 So.2d 1074, 1078 (La.1989); State v. Vigee, 518 So.2d
501, 503 (La.1988); State v. Shoemaker, 500 So.2d 385, 389 (La.1987);
State v. Vaughn, 431 So.2d 358, 370 (La.1982) (on reh'g). Against
that jurisprudential backdrop, there exists some jurisprudential
support for the defendant's claim she should have been allowed to
introduce evidence concerning FAS or her diminished mental capacity
for the limited purpose of challenging and/or explaining aspects of
her various statements.
In State v. Whitton, 99-1953 (La.App. 4 Cir.
9/27/00), 770 So.2d 844, the Fourth Circuit found the trial court
erred when it excluded evidence that the defendant suffered from
blackouts caused by substance abuse to challenge the voluntariness of
his confession. Specifically, the defendant maintained he had been
truthful when he initially told police that he did not recall
committing the multiple murders and had later been supplied with the
facts that he related in his confession by police both before and
during his recorded statement. Relying on dicta from this Court's
opinion in State v. Van Winkle, 658 So.2d at 203 (suggesting that the
trial court erred when excluding evidence of the defendant's mental
state during her various inculpatory statements) and La.Code Crim.
Proc. art. 703(G),22
the Whitton court held that “some evidence of mental defect may be
admissible when it concerns the circumstances surrounding the making
of a confession in order to enable the jury to determine the weight to
be given the confession.” Id., 770 So.2d at 854. See also Crane v.
Kentucky, 476 U.S. 683, 689, 106 S.Ct. 2142, 2146, 90 L.Ed.2d 636
(1986)(“[R]egardless of whether the defendant marshaled the same
evidence earlier in support of an unsuccessful motion to suppress, and
entirely independent of any question of voluntariness, a defendant's
case may stand or fall on his ability to convince the jury that the
manner in which the confession was obtained casts doubts on its
credibility.”); State v. Williams, 01-1650 (La.11/1/02), 831 So.2d
835, 843 (holding that the statutory rule of La.Code Crim. Proc. art.
703(A) which permits the defendant to introduce evidence at trial as
to the circumstances surrounding his confession “has its underpinnings
in the Due Process Clause and it necessarily operates independently of
any credibility determinations the trial court made in ruling on the
voluntariness of the statement as a matter of law.”).
Nonetheless, we hasten to add that the erroneous
exclusion of this evidence is subject to the harmless error standard
of review. In Crane, supra, a capital case in which the defendant's
sole defense was that there was a lack of physical evidence to link
him to the crimes and that, for a variety of reasons, his earlier
admission of guilt was not to be believed, the United States Supreme
Court found the erroneous exclusion of the defendant's testimony
regarding the circumstances of his confession fell under harmless
error review standards. More recently, in State v. Blank, 04-0204
(La.4/11/07), 955 So.2d 90, 133, cert. denied, --- U.S. ----, 128
S.Ct. 494, 169 L.Ed.2d 346 (2007), we found the trial court erred when
it overruled the defendant's objection to redacting portions of his
confession as it included information revealing that he had been
administered a polygraph examination, and not allowing the defendant
to examine the agent who administered the polygraph at trial to
support his claim that his confession was unreliable as a result of
coercive interrogation techniques. Nonetheless, we concluded in
Blank that because the transcript of the interrogation did not support
the claim that the defendant's confession was coerced and because
defendant consistently denied his involvement in the murder to the
agent who administer the polygraph examination, the excluded evidence
would not have caused the jury to disregard defendant's subsequent
lengthy and detailed confession and the trial court's error was thus
harmless. Id., 955 So.2d at 134-36.
In the present case, although evidence of
defendant's diminished mental capacity and diagnosis of FAS may have
helped explain her susceptibility to manipulation and disinterested
demeanor at trial, such evidence would have done nothing to diminish
the evidence demonstrating that at a minimum, she acted as a principal
to the first-degree murder of the victim. Independent of defendant's
statements, the State's crime scene reconstruction expert Lieutenant
Mark Rogers corroborated large portions of the defendant's statements.
Moreover, as discussed supra, considerable circumstantial evidence
presented at trial demonstrated her guilt. Accordingly, even
assuming the trial court should have admitted evidence of the
defendant's mental deficiency to help explain the circumstances of her
various statements to police, exclusion of the evidence was harmless.
Defendant's assignment of error lacks merit.
(Assignments of error 16-18)
In these assignments, the defendant claims that
reversal of her conviction and death sentence is required because of a
trial court ruling on a challenge for cause during voir dire and
because the trial court limited the scope of voir dire examination
adversely to the defendant. Initially, the defendant maintains the
trial court improperly granted a State challenge for cause to
prospective juror Veronica Ivy because her responses during voir dire
revealed she was not morally opposed to returning a death verdict.
Defendant also claims the trial court improperly limited the scope of
voir dire when it did not allow counsel to examine jurors in depth
about whether they could consider FAS as a mitigating circumstance at
Challenge for cause
A trial court is vested with broad discretion in
ruling on challenges for cause and its rulings will be reversed only
when a review of the voir dire record as a whole reveals an abuse of
discretion. State v. Cross, 93-1189 (La.6/30/95), 658 So.2d 683,
686-87; State v. Robertson, 92-2660 (La.1/14/94), 630 So.2d 1278,
1280. “[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
[inferred].” State v. Hallal, 557 So.2d 1388, 1389-90 (La.1990).
The proper standard for determining when a
prospective juror may be excluded for cause because of his/her views
on capital punishment is whether the juror's views would “prevent or
substantially impair the performance of his duties as a juror in
accordance with his instructions and his oath.” Wainwright v. Witt,
469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985); State
v. Sullivan, 596 So.2d 177 (La.1992), rev'd on other grounds sub nom.
Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182
(1993). The basis of exclusion under La.Code Crim. Proc. art.
798(2)(a), which incorporates the standard of Witherspoon v. Illinois,
391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), as clarified by
Witt, is that the juror “would automatically vote against the
imposition of capital punishment without regard to any evidence that
might be developed at the trial of the case before him․” Witherspoon
further dictates that a capital defendant's rights under the Sixth and
Fourteenth Amendments to an impartial jury prohibits the exclusion of
prospective jurors “simply because they voiced general objections to
the death penalty or expressed conscientious or religious scruples
against its infliction.” Id., 391 U.S. at 522, 88 S.Ct. at 1777.
In the present case, the State only exercised six
of its peremptory challenges. Accordingly, the State first argues
that even assuming the trial court erred when it excluded the juror
for cause based on her perceived inability to vote for the death
penalty, the trial court's error was harmless.
La.Code Crim. Proc. art. 800(B) provides that a
defendant cannot complain of an erroneous grant of a challenge to the
State “unless the effect of such a ruling is the exercise by the state
of more peremptory challenges than it is entitled to by law.”
Notwithstanding this provision of article 800(B), the United States
Supreme Court has consistently held that it is reversible error, not
subject to harmless-error analysis, when a trial court erroneously
excludes a potential juror who is Witherspoon-eligible, despite the
fact the State could have used a peremptory challenge to strike the
potential juror. Gray v. Mississippi, 481 U.S. 648, 664, 107 S.Ct.
2045, 2054, 95 L.Ed.2d 622(1987); Davis v. Georgia, 429 U.S. 122, 97
S.Ct. 399, 50 L.Ed.2d 339 (1976). Thus, under United States Supreme
Court jurisprudence, the State's failure to exhaust its peremptory
challenges does not obviate the need to review the merits of the
At the outset, in response to the State's inquiry
about her “feelings” about capital punishment, Veronica Ivy stated,
“I'm for the death penalty, but I prefer not to be the one who has to
impose it.” Trial Tr., vol. XXI, p. 4435 (Feb. 7, 2006). Later,
when the State asked if she could return a vote for death, she then
answered, “I don't know.” Id., p. 4436.
Classifying Ivy “as a theoretical supporter of the
death penalty” who “may not be able to impose it herself,” the trial
court called her for individualized voir dire. Id., p. 4470. She
then repeated to the State that she would “prefer not” to serve on a
capital jury, explaining, “I don't want to be the one to have to make
that decision. That's hard making judgment on someone else's life,
determine a life.” Id., p. 4471. After making several other
comments suggesting she did not know whether she could vote for death,
the State asked, “If it comes down to it, can you go back and vote
with those other people to impose a death penalty on another person
that you've been looking at for two weeks?” Id., p. 4473. Ivy
responded, unequivocally, “No.” Id. In response to defense counsel's
questions, Ivy vacillated again, stating it would not be “impossible”
for her to vote for death but that she “would prefer not” to have to
make that decision. Id., pp. 4473-74.
After hearing argument on the issue, the trial
court granted the State's cause challenge to Ivy, with the following
Ms. Ivy stated basically different things at
different times. I believe that she fits in a category established
by the jurisprudence as a theoretical supporter of the death penalty.
But I believe, based on the totality of her answers, that she is not
one who can impose it. She said, quote, I don't know if I could do
it. She said, I prefer not to do it. She said, I don't want to be
the one to do it. I don't want to judge. Who am I to judge? I
would have to live with that. She voiced a religious foundation for
her viewpoints. She said, I didn't believe in judging.
And I place great stock in her answer which was
concise and to the point of no when asked by Mr. Holland as his last
question whether or not she could vote to impose the death penalty.
She said emphatically, no. She equivocated before. She equivocated
after. But her clear and concise answer to Mr. Holland's question
I examined her demeanor very carefully. I think
she has wrestled with this issue. I think she's troubled by the
possibility of her being called upon to consider and apply the law
regarding the punishment issues in a death penalty case, in a first
degree murder case. And based on what I have observed by her
demeanor, what I infer about her feelings and her tone and everything
about her demeanor, coupled with her answer to Mr. Holland that I
referred to, I believe that the cause challenge by the State has merit
and is accordingly granted.
* * *
I think she'd be an excellent, splendid juror for
other cases, but not for a capital case.
Id., pp. 4476-77.
Our review of the record and the jurisprudence
shows the trial court's ruling was correct. Although Ivy stated she
theoretically supported the death penalty, she repeatedly indicated
she would prefer not to make that decision. Indeed, as borne out by
the transcript of her voir dire examination, it is clear she
vacillated considerably when asked whether she could vote for the
death penalty. We find it telling that at one point, she
unequivocally responded in the negative when asked if she could impose
the death penalty upon an actual person that she had been looking at
for two weeks. In these circumstances, we find the defendant fails
to show the trial court abused its discretion when it granted the
State challenge for cause. See State v. Williams, 96-1023
(La.1/21/98), 708 So.2d 703, 713, cert. denied, 525 U.S. 838, 119
S.Ct. 99, 142 L.Ed.2d 79 (1998) (“Although Ms. McAdams and Ms. Lewis
were theoretical supporters of the death penalty, a full reading of
the voir dire clearly indicates they could not have imposed the
penalty in this case.”); cf. State v. Frost, 97-1771 (La.12/1/98),
727 So.2d 417, cert. denied, 528 U.S. 831, 120 S.Ct. 87, 145 L.Ed.2d
74 (1999) (jurors properly dismissed for cause when age of defendant
would have impaired their ability to return the death penalty).
Scope of voir dire
Defendant also claims the trial court erred when it
denied her the opportunity to examine prospective jurors concerning
their ability to consider FAS as a mitigating circumstance.
At the commencement of voir dire, the State made an
oral “motion in limine prohibiting the use by defense of the specific
term fetal alcohol syndrome or fetal alcohol disorder” arguing that
counsel “is entitled to voir dire at length on the law of the case but
not entitled to preview their specific defenses.” Trial Tr., vol.
XX, p. 4278 (Feb. 6, 2006). The trial court responded that its
inclination was to allow the defense to ask jurors if they could
consider fetal alcohol syndrome as a mitigating circumstance, but that
“to go into it otherwise is inappropriate.” Id., p. 4279. The trial
court later clarified its ruling, stating:
[T]he defense can ask the prospective juror if they
have ever heard of the term fetal alcohol syndrome. Whether they can
consider that along with any other relevant mitigating circumstance.
* * *
I think it's inappropriate for the defense to ask
really anything else. I believe that any description of it is
unnecessary and inappropriate.
Id., p. 4335.
Defense counsel objected to the trial court's
ruling. He then renewed the request to educate jurors about the
condition following the examination of the first panel of jurors,
Your Honor, I just would like to reurge the ability
to question the jurors more so on the fetal alcohol syndrome. As we
see from this first panel, it seems like everybody has heard of it
oddly enough, but that many don't really realize what it is. Some
are even asking or making statements like they heard of it in children
but they never have in an adult, as if somehow the brain could somehow
get better or fix itself. So I think there is a lack of
understanding. If I can't go into that in more detail, then I may
just be stuck with that. I'm getting back from the jury they heard
of it, but they really don't know what it is or how insidious it is.
Id., p. 4390.
The trial court denied the request, stating:
I believe that you've had ample opportunity to ask
jurors whether or not they can consider fetal alcohol syndrome as a
mitigating circumstances and factor. I think you've gotten answers.
I believe that request shall be denied. I think that has been gone
into quite enough. And I think that obviously at the right time, you
will have all the time you need to present any and every mitigating
circumstance in detail.
Id., pp. 4390-91.
La. Const. art. I, § 17 guarantees a defendant full
voir dire examination of prospective jurors and the right to challenge
jurors peremptorily. The purpose of voir dire is to determine
qualifications of prospective jurors by testing their competency and
impartiality in order to discover bases for challenges for cause and
for the intelligent exercise of peremptory challenges. State v. Hall,
616 So.2d 664, 668 (La.1993). Nonetheless, the scope of examination
rests within the sound discretion of the trial court, and its ruling
will not be disturbed absent clear abuse. La.Code Crim. Proc. art.
786; Hall, 616 So.2d at 669. In determining whether the trial court
afforded a sufficiently wide latitude to the defendant, the entire
voir dire examination must be considered. Id.
Louisiana law clearly establishes that a party
interviewing a prospective juror may not ask a question or pose a
hypothetical scenario which would demand a commitment or pre-judgment
from the juror or which would pry into the juror's opinions about
issues to be resolved in the case. “It is not proper for counsel to
interrogate prospective jurors concerning their reaction to evidence
which might be received at trial.” State v. Williams, 230 La. 1059,
89 So.2d 898, 905 (1956). See also State v. Vaughn, 431 So.2d 358,
360 (La.1983); State v. Square, 257 La. 743, 244 So.2d 200, 226
(1971) ( “Voir dire examination is designed to test the competence and
impartiality of prospective jurors and may not serve to pry into their
opinions concerning evidence offered to be offered at trial”),
judgment vacated in part, 408 U.S. 938, 92 S.Ct. 2871, 33 L.Ed.2d 760
(1972), mandate conformed to, 263 La. 291, 268 So.2d 229 (1972);
State v. Smith, 216 La. 1041, 45 So.2d 617 (1950) (hypothetical
questions and questions of law are not permitted in the examination of
jurors which call for a pre-judgment of any supposed case on the
In the case sub judice, the trial court's ruling
limiting voir dire did not prejudice defendant. The trial court
permitted the defense to question jurors about their ability to
consider defendant's mental deficiencies, allegedly caused by FAS, as
a mitigating factor during the penalty phase. As argued by the
State, it is inappropriate to allow the defense “to use voir dire to
indoctrinate jurors regarding a complex medical subject about which
experts will testify later, or to obtain a guarantee that the juror
will use that mitigating circumstance to ensure that a death sentence
will not be returned.” Brief for the Respondent, p. 50. In
summation, we find the defendant fails to show the trial court erred
in its rulings during voir dire. Thus, the defendant's assignments
of error lack merit.
PENALTY PHASE: OTHER CRIMES EVIDENCE
(Assignments of error 26-28)
In several related assignments of error, the
defendant focuses on unadjudicated other crimes evidence the State
presented at the penalty phase of her trial. As discussed more fully
below, the State introduced evidence at the sentencing hearing that
the defendant unsuccessfully attempted another violent home
entry/robbery days before she and Coleman forced their way into the
Brandons' residence and committed the robbery and murder there. The
State also presented evidence concerning the defendant's involvement
in the murder of Terrance Blaze days after the murder of Reverend
The State claimed in its amended notice of intent
to introduce the other crimes evidence that it would show that:
(11) On or about the 27th day of December 2002, the
defendant was involved in an attempt to gain entrance information,
under false pretenses, to Nob Hill which is a gated community in
Blanchard, Caddo Parish, Louisiana.
(12) On or about the 27th day of December 2002 and
the 30th day of December 2002, defendant was involved in attempts to
gain entry, under false pretenses, into the home of Patricia Camp,
with the intention to burglarize the residence and/or murder Ms. Camp.
(13) The defendant was involved in the
unadjudicated offenses surrounding the death of Terrance Blaze in
Caddo Parish on or about January 4, 2003.
Trial Tr., vol. XVII, pp. 3599-600 (Jan. 27, 2006).
At the pretrial hearing on the admissibility of the
evidence, the State presented the testimony of DA investigator Don
Ashley concerning attempts that had been made by a woman calling 911
in an effort to obtain the gate code for Nob Hill.24
He continued that the fraudulent effort to enter the gated community
related to two subsequent attempts by defendant, on December 27 and
December 30, to gain access to the home of Patricia Camp, a resident
of Nob Hill. Camp subsequently identified the defendant from a
photographic lineup as the individual who tried to gain entry into her
home. Ashley continued that during the investigation of the present
offense, the defendant:
admitted going to Nob Hill and attempting to gain
entry to that particular house. And had made the comment that had
she gained entry, the same thing would have happened to her [Mrs.
Camp] that happened to the Brandons.
Trial Tr., vol. XXVIII, p. 5861 (Feb. 14, 2006).
Ashley then testified about the defendant directing
police to the body of Terrance Blaze during her interrogation about
Reverend Brandon's murder and her subsequent inculpatory statements,
including her written confession in her letter to the district
attorney's office, demonstrating her involvement in that killing.
At the conclusion of the hearing, the trial court
ruled evidence of the Blaze homicide admissible. The court stated:
I am ready to rule with respect to the ․ Terrance
Blaze evidence. That is evidence of unadjudicated conduct and it is
clear that at this hearing I believe that this evidence that the
district attorney wants to present is clear and convincing. I
believe it is competent and reliable. I believe it has relevance and
substantial probative value as to Brandy Holmes's character and
* * *
I believe that the confession by Ms. Holmes of the
unadjudicated crime, that being the second degree murder of Terrance
Blaze is admissible because it is competent and reliable and
trustworthy in light of the all the other circumstances.
Id., p. 5873.
Regarding the attempted burglary of Camp's
residence, the trial court held that the State could present evidence
of the 9-1-1 recording for the jury. However, the court concluded
that the jury could make up its own mind about whether the speaker was
the defendant. The trial court then ruled admissible evidence that:
on or about the 27th day of December, 2002, and the
30th day of December, 2002 defendant was involved in attempts to gain
entry under false pretences [sic] into the home of Patricia Camp with
the intention to burglarize the residence and or murder Ms. Camp.
Id., p. 5874.
At the penalty phase, the State introduced a
recording of the 911 call into evidence. In addition, the 9-1-1
operator who took the call testified that the call originated from
3737 Roy Road, where the defendant had been staying. Patricia Camp,
73 years of age, testified the defendant rang her doorbell twice: the
first time on December 27, 2002, asking for an individual named
Theresa McGee; and the second time, a few days later on December 30,
2002, asking to use the telephone. Camp also testified she
identified the defendant's picture from a photographic lineup. At
trial, Camp made an in-court identification of the defendant as the
person who had attempted to gain entry to her residence.
The State then presented testimony from Detective
Kay Ward who stated the defendant admitted going to Camp's residence,
“but the lady wouldn't open the door. And she stated in the
interview that if the lady would have opened the door that they would
have killed them.” Trial Tr., vol. XXIX, p. 5928 (Feb. 15, 2006).
The State then played that portion of the defendant's recorded
interview with Ward for the jury.
CPSO Captain Bobby Abraham then testified that
during his interrogation about the Brandon murder, the defendant told
him she had burned the credit cards stolen from the home. When asked
if she could take him to the location of the credit cards, the
defendant told him they were on a dirt road near another dead body.
The defendant then directed police to that location where they found
the body of Terrance Blaze, who had been shot to death.
Forensic evidence showed a gunshot to the back of
the head killed Blaze; the evidence further showed Blaze was killed
when he was either sitting down or standing up. In her first
statement about the Blaze homicide, the defendant claimed he was
killed by a gang member named “Marcus” because Blaze owed Marcus money
for drugs. The defendant stated that Marcus had threatened her with
a gun and forced her to drive his (Marcus's) vehicle and then pick up
Blaze. Blaze entered the passenger side of the vehicle and Marcus
confronted Blaze about the alleged debt from the backseat of Marcus's
car. Marcus then shot Blaze in the back of the head.
Subsequently, DNA analysis revealed that Blaze's
blood was found in defendant's mother's car. Mark Rogers, a crime
scene analyst and an expert in blood stain spatter analysis, testified
that circumstantial evidence suggested the defendant shot Blaze in the
back of the head from the rear seat of the vehicle as he sat in the
passenger seat while Coleman was in the driver's seat. Finally,
Assistant District Attorney Ed Blewer then identified the letter the
defendant wrote him in which she admitted that “she did shot and kill
Terrance Blaze․” Trial Tr., vol. XXIX, p. 6011.
Initially, the defendant argues the State gave
insufficient and vague notice of the other crimes evidence.
In State v. Hamilton, 478 So.2d 123 (La.1985),
cert. denied, 478 U.S. 1022, 106 S.Ct. 3339, 92 L.Ed.2d 743 (1986), we
vacated the defendant's death verdict when it found the State
introduced “entirely new evidence of another [unadjudicated] crime ․
in the case in chief in the penalty phase, without any notice
whatsoever to defendant to be prepared to meet such evidence.” Id.
478 So.2d at 131. The Hamilton court concluded the notice provision
of La.Code Crim. Proc. art. 720 25
should apply also to the penalty phase in a bifurcated capital case.
Id., 478 So.2d at 132. Nevertheless, in State v. Ward, 483 So.2d
578 (La.1986), cert. denied, 479 U.S. 871, 107 S.Ct. 244, 93 L.Ed.2d
168 (1986), we found that a State response to a defense discovery
request revealing that the State would rely on “defendant's prior
criminal record,” without more, constituted sufficient notice of the
State's intention to introduce prior crimes evidence at the penalty
phase. We then pointed out that:
the notice required in the penalty phase is not as
detailed as that required by C.Cr.P. 720 in the guilt phase and State
v. Prieur, 277 So.2d 126 (La.1973), because in the penalty phase there
has already been a determination of guilt lessening the chance that
the defendant will be tried for crimes other than those charged.
483 So.2d at 588. See also State v. Rault, 445
So.2d 1203, 1215 (La.1984), cert. denied, 469 U.S. 873, 105 S.Ct. 225,
83 L.Ed.2d 154 (1984) (holding the trial court correctly allowed
admission at penalty phase of evidence of defendant's other criminal
activity, even when defense counsel claimed to have received no
notice, when testimony of defense witness made it clear that the
defense knew of the criminal activity, and defense did not articulate
how notice would have changed its strategy).
As discussed supra, in the present case the State
provided written notice of its intent to introduce the other crimes
evidence and the trial court held a hearing. Thereafter, the trial
court determined that evidence of the attempted burglary of Camp's
residence and Blaze's murder were admissible. At neither the hearing
nor during the sentencing phase did the defense claim the State's
notice misled it concerning the nature of the evidence it intended to
present at the penalty phase. Accordingly, we find no merit to the
defendant's claim concerning insufficient notice of the other crimes
The defendant further contends the trial court
erred when it admitted evidence of the other crimes because the State
failed to carry its burden of showing by clear and convincing evidence
that she committed the offenses.
La.Code Crim. Proc. art. 905.2 provides that “[t]he
sentencing hearing shall focus on the circumstances of the offense,
the character and propensities of the offender, and the impact that
the death of the victim has had on family members.” Jurisprudential
rules have evolved governing the admission in penalty phase hearings
of unrelated and unadjudicated crimes evidence to prove the
defendant's character and propensities. In State v. Brooks, 541
So.2d 801 (La.1989), we approved the State's introduction in its
case-in-chief in the penalty phase of two unrelated and unadjudicated
murders after the trial judge made three determinations: (1) the
evidence of the defendant's commission of the unrelated criminal
conduct is clear and convincing; (2) the proffered evidence is
otherwise competent and reliable; and (3) the unrelated conduct has
relevance and substantial probative value as to the defendant's
character and propensities. Brooks, 541 So.2d at 814. In State v.
Jackson, supra, we granted a pre-trial writ of certiorari to establish
limitations on the admissibility of unrelated and unadjudicated
criminal conduct in capital sentencing hearings. Jackson also
incorporated the three-pronged test from Brooks. Jackson, 608 So.2d
at 956. There, we ruled the evidence of the unadjudicated criminal
conduct must involve violence against the person of the victim for
which the period of limitation for instituting prosecution had not run
at the time of the indictment of the accused for capital murder.
Jackson, 608 So.2d at 955. Thereafter, we applied the limitations
of Jackson in State v. Bourque, 622 So.2d 198 (La.1993). In
Bourque, we held that evidence of an unrelated and unadjudicated
killing, committed one hour before the murder at issue in the capital
case being tried, was admissible, because it was relevant evidence of
Bourque's character and propensities and fell within the limitation
enunciated in Jackson. However, a majority of the Court reversed the
death sentence on the basis that the State “presented a prohibited
‘mini-trial’ on the issue of the defendant's guilt or innocence of the
killing of Jasper Fontenot,” the unrelated and unadjudicated conduct.
Id., 622 So.2d at 248. Thus, the Bourque decision limited the
amount of admissible evidence the State may introduce in the
case-in-chief of the penalty phase, holding that anything beyond
“minimal evidence” of the unadjudicated criminal conduct impermissibly
shifts the focus of the capital sentencing jury from the character and
propensities of the defendant to the determination of the guilt or
innocence of the defendant with respect to the unadjudicated criminal
However, in State v. Comeaux, 93-2729 (La.7/1/97),
699 So.2d 16, cert. denied, 522 U.S. 1150, 118 S.Ct. 1169, 140 L.Ed.2d
179 (1998), we revisited the issue and held that Bourque's further
limitation on the amount of admissible evidence, no matter how highly
relevant to the defendant's character and propensities, was
unnecessary to guarantee due process. We noted that the thrust of
the Jackson decision was not to exclude any evidence that was
significantly relevant to the defendant's character and propensities,
no matter what the amount of the evidence was. Rather, we found the
impetus for the Jackson decision was to maintain the jury's focus on
its function of deciding the appropriate penalty by eliminating
marginally relevant evidence that does not aid the jury in performing
this function. Accordingly, we used Comeaux as a vehicle to provide
guidelines to help determine whether character and propensity evidence
is admissible at the penalty phase. We held that evidence which
establishes that the defendant, in the recent past, “has engaged in
criminal conduct involving violence to the person is highly probative
of the defendant's character and propensities. On the other hand,
the type of evidence that tends to inject arbitrary factors into a
capital sentencing hearing usually is evidence which is of only
marginal relevance to the jury's determination of the character and
propensities of the defendant.” Id., 699 So.2d at 16.
We have vacated death sentences in other cases in
which we found the trial court admitted unreliable other crimes
evidence at the penalty phase. See, e.g., State v. Hobley, 98-2460
(La.12/15/99), 752 So.2d 771, 781, cert. denied, 531 U.S. 839, 121
S.Ct. 102, 148 L.Ed.2d 61 (2000) (“Absent extrinsic evidence linking
defendant to the alleged crime, we cannot say that defendant's
admission to the unadjudicated crime was [not] the result of
braggadocio ․ the state must show that the confession was not the
product of police coercion and that the crime actually occurred.”);
State v. Brooks, 92-3331 (La.1/17/95), 648 So.2d 366, 376 (“[T]he
trial court erred in admitting at the penalty phase that part of
Brooks' confession which contained references to multiple
unadjudicated offenses not shown by clear and convincing evidence and
not supported by competent and reliable evidence-offenses which in
fact may not have occurred.”).
In stark contrast to the reversals just cited, our
review of the record in the present case shows the trial court
carefully considered the reliability of defendant's confessions to the
other crimes, and found at the Jackson hearing that considerable
circumstantial evidence corroborated the defendant's confessions. As
detailed above, the record fully supports the determination that the
State proved by clear and convincing evidence the defendant's
involvement in the murder of Blaze and the ruse defendant employed in
her attempt to gain entry into Camp's Nob Hill home. Accordingly,
the defendant fails to show the trial court erred when it found the
State presented the requisite proof she committed these other crimes.
Defendant further contends the State should not
have admitted evidence of the Camp incident. The defendant premises
her contention on three arguments: (1) she aborted her plan to commit
the violent home entry when the intended victim refused to allow her
access to the residence; (2) her conduct did not constitute a
full-fledged attempt; and (3) this unadjudicated crime should have
been found inadmissible under Jackson because it did not involve
violence against the person of the victim for which the period of
limitation for instituting prosecution had not run at the time of the
indictment of the accused for capital murder.
Our review of the record shows that at the very
least, the State proved by clear and convincing evidence that
defendant committed an attempted aggravated burglary.26
This is fully supported through the defendant's admission concerning
her intent when she went to Camp's house and that she surreptitiously
tried to gain entry to the home on two separate occasions. Cf. State
v. Lozier, 375 So.2d 1333, 1337 (La.1979)(holding that although
unauthorized entry for purposes of La.Rev.Stat. § 14:60 is an entry
without consent, express or implied, fraud or threat of force may
violate consent when defendant gains entry to the victim's home under
pretense that he was a police officer, the entry was unauthorized as
the result of his misrepresentation). Moreover, the defendant's
statement that she would have killed the occupants of the Camp
residence was chillingly poignant evidence of her character and
propensities, and constituted highly probative evidence for the jury
to consider. Finally, even assuming the trial court should not have
admitted evidence of this incident-it paled in comparison to the
properly admitted evidence that defendant shot and killed Terrance
Blaze days after the murder of Reverend Brandon-it certainly did not
interject an arbitrary factor into the jury's deliberations at
sentencing which would have rendered its verdict unreliable.
PENALTY PHASE: UNADJUDICATED OTHER CRIMES;
CROSS-EXAMINATION OF DEFENSE EXPERT
(Assignment of error 29)
In this assignment, the defendant contends the
trial court erred when it allowed the introduction of otherwise
inadmissible other crimes evidence during the cross-examination of Dr.
Vigan, one of her expert witnesses at the penalty phase.
The defendant called Dr. Vigan at the penalty phase
and he testified about the results of neuropsychological testing he
conducted and his suspicions that she may suffer from FAS. On
cross-examination, the State first confirmed that Dr. Vigan had
reviewed the defendant's medical and legal records. The State then
received affirmative responses from Dr. Vigan when it asked if he
learned when reviewing these records that: (1) “by age 12 or 13
Brandy Holmes was involved with a black street gang”; (2) “she was
involved in drive-by shootings”; (3) “she was expelled from school
for taking three knives to school”; (4) “she was involved in multiple
burglaries”; (5) “she was in multiple escapes or attempted” escapes;
and (6) “she and her boyfriend were involved in kidnaping a girl in
Mississippi.” Trial Tr., vol. XXX, pp. 6104-06 (Feb. 16, 2006). At
that point, defense counsel lodged an objection, which the trial court
overruled. The trial court then stated it would later assign reasons
for the ruling.
The State then referred to a summary that Dr. Vigan
prepared for the pre-trial hearing on the motion to quash and referred
to diagnoses and notes of other mental health professionals over the
years. First, the State pointed to information revealing that at
thirteen years of age, defendant had been “combative and assaulted two
personnel” at a mental health facility. Id., p. 6107. Medical
records further showed the defendant had been diagnosed at fifteen
years of age with oppositional defiant disorder and conduct disorder.
At seventeen years of age, a clinical psychologist noted “defendant
was immature, narcissistic and self-indulgent.” Id., p. 6109. At
eighteen years of age, another doctor diagnosed defendant with “post
traumatic disorder on axis one,” and “borderline personality disorder
with antisocial features on axis two.” Id. The State then drew Dr.
Vigan's attention to a report by Dr. George Seiden, who examined the
defendant as a member of the sanity commission. After reviewing the
report, Dr. Vigan stated that Dr. Seiden assigned the defendant with
an axis two diagnoses of antisocial personality disorder and
borderline intellectual functioning.
Following Dr. Vigan's testimony, the trial court
explained its rationale for overruling the defense objection as
Let me say for the record that the district
attorney can legitimately cross-examine[ ] a defense witness expert,
specifically Dr. Mark Vigan, on the basis of his opinion which is that
Ms. Holmes is antisocial. According to Dr. Vigan, she fits the
criteria that he enumerated, and Dr. Vigan was asked about examples as
to why she fit the criteria.
It's my viewpoint that once the defense puts on a
defense expert witness, that witness is subject to broad
cross-examination on what that expert has reviewed and what that
expert has considered, and that's pursuant to Article 703 and 705(B)
of the Code of Evidence. Particularly in this proceeding, this phase
of the case, the issue under law to a great extent is character and
propensities of the defendant, and that's under Article 905.2 of the
Code of Criminal Procedure.
So I believe that on cross-examination, the
prosecution is entitled to elicit the bases for the expert's various
opinions about the defendant. I think to the extent it bears
directly on character and propensities, it is most relevant and
admissible in this hearing.
Trial Tr., vol. XXX, pp. 6150-51 (Feb. 16, 2006).
From the outset, we observe defense counsel failed
to lodge an objection to the evidence until after Dr. Vigan answered
the State's inquiries about the other crimes and thus waived any claim
based on the testimony subject to Rule 28 review. La.Code Crim. Proc.
art. 841; Wessinger, infra. Moreover, La.Code Evid. art. 705(B)
provides that in a criminal case, while every expert witness must
state the basis for his conclusion, if the evidence is otherwise
inadmissible hearsay, it can be elicited during cross-examination.27
Accordingly, the State was certainly entitled to ask Dr. Vigan
questions about the medical records upon which he relied when he
formulated his psychological evaluation of the defendant.
In any event, although the defendant makes several
complaints about admission of testimony concerning the other
crimes-specifically that it was irrelevant and unreliable, and that
the State failed to give proper notice-even accepting these somewhat
unconvincing allegations, it would not require us to vacate the
defendant's death sentence. The references to the other crimes were
extremely brief and mentioned only in relation to those documents Dr.
Vigan had examined when diagnosing defendant. In contrast, the
properly admitted evidence at the penalty phase demonstrated that in
addition to the brutal murder for which she was convicted, the
defendant had participated in Blaze's killing only days afterwards.
In these circumstances, even assuming that admission of the crimes
evidence during Dr. Vigan's cross-examination was improper despite
defendant's failure to object, it did not interject an arbitrary
factor into the jury's deliberations which would thereby render its
verdict at the penalty phase unreliable. Accordingly, we find the
defendant's assignment of error meritless.
EVIDENTIARY RULING: PLEA NEGOTIATION LETTER
(Assignment of error 29)
In this assigned error, defendant claims the trial
court erred when it allowed the State to introduce a portion of the
letter she wrote to Ed Blewer, an assistant district attorney, in
which she admitted killing Terrance Blaze. The introduction of this
letter occurred in the penalty phase.28
As an initial matter, although defendant claims on
appeal that the trial court should not have admitted the letter
because it was written in the course of plea negotiations, see La.Code
Evid. art. 410,29
the record shows the defendant did not object to introduction of the
document on that basis. Rather, the defense counsel argued he should
be allowed to withdraw from the case so that he could appear as a
witness to explain the context in which the letter was written.
Accordingly, subject to Rule 28 review, given this Court's settled
rule that a new basis for an objection may not be urged for the first
time on appeal, State v. Sims, 426 So.2d 148, 155 (La.1983) Y; State
v. Stoltz, 358 So.2d 1249, 1250 (La.1978); State v. Ferguson, 358
So.2d 1214, 1220 (La.1978), we find the defendant waived any claim
based on admission of this evidence.
TRIAL COUNSEL'S MOTION TO WITHDRAW
(Assignment of error 30)
In this assignment, the defendant claims the trial
court erred when it denied her counsel's motion to withdraw brought
approximately one month prior to trial. The basis for defense
counsel's motion was that he might have to testify to explain the
context in which the letter that defendant sent the assistant district
attorney was written. In the written motion and at the hearing,
defendant's trial attorney, David McClatchey, explained the basis of
his motion, stating that if the State introduced the letter in which
defendant admitted to killing Blaze, he was “the only witness who
could explain what actually transpired between counsel and client that
resulted in the letters being sent and the misunderstanding that
followed.” Trial Tr., vol. XV, p. 3250 (Jan. 3, 2006); vol. XIX,
pp. 4226-28 (July 21, 2005).
In response to the defendant's motion, the State
agreed it would not introduce counsel's letter in which he made a plea
offer to the State which prompted the defendant to contact the
assistant district attorney herself. The State further agreed it
would redact any reference to plea negotiations in defendant's
The trial court denied the motion to withdraw,
stating that if defense counsel wanted to explain the context of the
defendant's unsolicited correspondence to the State, “another lawyer
with the Indigent Defender Office could probably provide that
information․” Id., p. 4232. The trial court also noted that it
could provide an admonition to the jury regarding what consideration
it should give to the evidence. Noting that trial had been scheduled
to begin one month from the counsel's motion to withdraw, the trial
court found it “totally inappropriate and unmerited ․ to relieve Mr.
McClatchey” from the case. Id.
Defendant unsuccessfully re-urged this claim in her
motion for a new trial. In its denial of the defendant's motion the
trial court stated:
Everything that Mr. McClatchey uses to form the
basis for his objection was marked out. It was blocked through such
that the jury would only read exactly what I just stated. Therefore,
there was never the need for Mr. McClatchey to be available to testify
about the other parts of that letter, which I think, if my memory
serves me correctly, pertain to a plea offer by Ms. Holmes to plead
guilty to first degree murder of the killing of Reverend Brandon.
Trial Tr., vol. XXX, pp. 6264-65 (April 27, 2006).
Defendant now contends the trial court's rulings
denied her the opportunity to explain the context in which the letter
was written without compromising her Fifth Amendment right not to
testify. She maintains that McClatchey was “the only witness who
could explain, place in context and challenge, the most damning piece
of evidence that the state used to prove its most damning assertion at
the penalty phase; that Brandy Holmes shot and killed Terrance
Blaze.” Brief for the Appellant, p. 65.
Our review of the record shows that any reference
to defense counsel's plea offer was redacted from the letter.
Accordingly, the redaction of any reference to a plea offer made the
defense counsel's testimony inessential because there would have been
nothing to testify about concerning the context of the letter. We
further note the record shows that defense counsel never objected to
redaction of the reference to his offer of a plea bargain in the
defendant's unsolicited correspondence to the assistant district
attorney. As discussed above, the defendant did present the
testimony of multiple experts at the sentencing phase to discuss her
low intelligence and suspected FAS and these experts could have
offered insight into defendant's comprehension of the charges at the
time she authored the letter; such expert insight, however, was not
After carefully examining the record and the
jurisprudence, we find the defendant neither shows the trial court
abused its discretion when it denied her counsel's motion to withdraw,
nor that she suffered resulting prejudice. See State v. Johnson, 406
So.2d 569, 572 (La.1981) (holding that the attorney's advising
criminal defendant that the best course of action would be to plead
guilty by way of plea bargain with State, advice that was properly
given in light of abundance of evidence against defendant, was not the
sort of actual conflict which would prevent the attorney from
rendering effective legal assistance to defendant). The defendant's
assignment of error is meritless.
(Assignments of error 20-24)
In these assigned errors, the defendant argues the
trial court erred when it permitted the State to present improper
victim-impact evidence. She contends this evidence interjected
arbitrary factors in the jury's deliberations during sentencing,
rendering its verdict of death unreliable.
La.Code Crim. Proc. art. 905.2 provides in part:
The sentencing hearing shall focus on ․ the
character and propensities of the offender, and the impact that the
death of the victim has had on family members, friends, and
As shown in the jurisprudence, two broad categories
of victim-impact evidence may be admitted: (1) information revealing
the individuality of the victim; and, (2) information revealing the
impact of the crime on the victim's survivors. Payne v. Tennessee,
501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991); State v.
Taylor, 93-2201 (La.2/28/96), 669 So.2d 364, 369-70, cert. denied, 519
U.S. 860, 117 S.Ct. 162, 136 L.Ed.2d 106 (1996); State v. Scales,
93-2003 (La.5/22/95), 655 So.2d 1326, cert, denied, Scales v.
Louisiana, 516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670 (1996);
State v. Martin, 93-0285 (La.10/17/94), 645 So.2d 190, cert. denied,
515 U.S. 1105, 115 S.Ct. 2252, 132 L.Ed.2d 260 (1995). Thus, some
evidence depicting the impact of the loss on the victim's survivors is
permitted. Notwithstanding, in State v. Bernard, 608 So.2d 966
(La.1992), we cautioned:
In order to provide general guidance to trial
courts in capital sentencing hearings, we reiterate that some evidence
of the murder victim's character and of the impact of the murder on
the victim's survivors is admissible as relevant to the circumstances
of the offense or to the character and propensities of the offender.
To the extent that such evidence reasonably shows that the murderer
knew or should have known that the victim, like himself, was a unique
person and that the victim had or probably had survivors, and the
murderer nevertheless proceeded to commit the crime, the evidence
bears on the murderer's character traits and moral culpability, and is
relevant to his character and propensities as well as to the
circumstances of the crime. However, introduction of detailed
descriptions of the good qualities of the victim or particularized
narrations of the emotional, psychological and economic sufferings of
the victim's survivors, which go beyond the purpose of showing the
victim's individual identity and verifying the existence of survivors
reasonably expected to grieve and suffer because of the murder, treads
dangerously on the possibility of reversal because of the influence of
arbitrary factors on the jury's sentencing decision. Whether or not
particular evidence renders a hearing so fundamentally unfair as to
amount to a due process violation must be determined on a case-by-case
Bernard, 608 So.2d at 972; see also State v.
Taylor, 669 So.2d at 370-371.
Turning now to the record of the present case, we
note that at the pre-trial hearing on admissibility, the defendant
objected to the presentation of a four and one-half minute videotape
of Alice Brandon, the survivor of the defendant's attack. Defense
counsel suggested the videotape did not address the impact of Mr.
Brandon's death upon Mrs. Brandon, but instead depicted the physical
injuries she sustained as a result of the defendant's crime. The
defense also objected to the admission of Reverend Brandon's diplomas
which showed he graduated from Centenary College and Southwestern
Baptist Theological Seminary. At the conclusion of the hearing, the
trial court admitted all of the victim-impact evidence the State
sought to introduce, particularly testimony from Reverend Brandon's
two daughters about their parents.
At the penalty phase, only two victim-impact
witnesses testified. Julie Lloyd, the victim's youngest daughter,
testified about her parents' livelihoods, her relationship with her
parents, and their relationship with one another. She also
identified several photos of the family, and finally, discussed
Reverend Brandon's diplomas. Dawn Finley, the victim's oldest
daughter, described in detail her mother's injuries caused by the
gunshot wound she sustained during the violent entry into her parents'
home, stating she needed around-the-clock care. She then narrated
the “day-in-the-life” video which depicted her mother's routine,
including the insertion of feeding and tracheotomy tubes, procedures
with which she was intimately familiar because of her medical
From the outset, we note that at the Bernard
hearing the State clearly stated it had already edited the videotape
of Mrs. Brandon before the penalty phase at Coleman's trial. The
trial court similarly acknowledged that the video had been redacted to
comply with the strictures of Bernard at the earlier trial.30
Although defense counsel correctly asserts that
defendant was not on trial for the attempted murder of Alice Brandon,
the defendant was charged with first-degree murder “[w]hen the
offender has a specific intent to kill or to inflict great bodily harm
upon more than one person.” La.Rev.Stat. § 14:30(A)(3). In
addition, one of the aggravating circumstances upon which the State
relied to seek the death penalty against the defendant was that the
“offender knowingly created a risk of death or great bodily harm to
more than one person.” La.Code Crim. Proc. art. 905.4(A)(4). In
these respects, the videotape depicting Mrs. Brandon's present
physical and mental condition, which precluded her presence at trial,
was poignantly relevant and properly admitted.
As to the victim's diplomas, the defense may be
technically correct in its argument that they “go more towards the
victim's worth than the victim's impact,” Trial Tr., vol. XVIII, p.
5850 (Feb. 14, 2006). Nonetheless, as the State responded, the jury
had already been presented with considerable evidence revealing that
the victim was a minister and that he bore the title of reverend.
Accordingly, we find the diplomas could not have had any untoward
inflammatory impact on the jury during its penalty phase
On appeal, defendant further contends the State
introduced victim impact evidence concerning the murder of Terrance
Blaze without providing notice to the defendant. Specifically, she
complains about references Blaze's girl friend made describing him as
“smart,” “shy,” and “gentle,” and additional comments concerning his
relationship with her three-year-old child. Trial Tr., vol. XXIX,
pp. 5966-67 (Feb. 15, 2006). Defendant contends this description was
misleading because other evidence demonstrated that Blaze was actually
“a member of a notorious local gang.” Brief for the Appellant, p.
Our review of the record shows defense counsel did
not lodge any objection to these brief descriptions of Blaze's
character and it has not been preserved for appellate review. La.Code
Crim. Proc. art. 841; Wessinger. Nevertheless, considering it was
Blaze's girl friend who made these statements, the jury surely would
not have been surprised by these favorable characterizations of Blaze.
See generally State v. Manning, 03-1982 (La.10/19/04), 885 So.2d
1044, 1099 (holding that “[a]ssuming that testimony indicating
victim's family had no sympathy for defendant should not have been
admitted, the error was harmless as such evidence ‘certainly would
come as no surprise to a member of the jury’ ”). As a result, this
argument lacks merit. Moreover, these characterizations certainly
did not interject an arbitrary factor into the jury's deliberations at
Finally, the defendant complains about a portion of
the State's cross-examination of Dr. Vigan concerning post-traumatic
stress disorder (PTSD). On redirect, the witness had testified that
defendant had first been diagnosed with PTSD at twelve years of age
and still suffered from the condition. In response, the State
hypothetically asked whether the defendant may have caused her
nine-year old nephew to suffer from the PTSD when she brought him to
the Brandon crime scene, where the victim's body still remained,
following her commission of the offense.
Again, counsel lodged no objection to the State's
inquiry and it has not been preserved for appellate review. La.Code
Crim. Proc. art. 841. In any event, even though the hypothetical
question may not have qualified as victim impact evidence under art.
905.2 and Bernard, it was arguably relevant. As the State noted, the
hypothetical question addressed the defendant's character and
propensities because it demonstrated defendant's “callous behavior and
reckless exposure of a young child to the horrors at the Brandon
home.” Brief for the Respondent, p. 47.
Defendant's claims concerning the introduction of
victim impact evidence lack merit.
CONSTITUTIONALITY OF LA. CODE CRIM. PROC. art.
(Assignment of error 31)
The defendant claims the trial court erred when it
denied her pretrial motion to declare Article 905.5.1 unconstitutional
and for relief from the unconstitutional discovery requirements in
article 905.5.1. The defendant's motion contended, inter alia, that
the inclusion of section E in article 905.5.1 violated the defendant's
constitutional rights. Specifically, the defendant contends the
inclusion of section E causes her to relinquish her Fifth Amendment
rights against self-incrimination because to demonstrate that she is
mentally retarded, and hence exempt from execution, she must provide
the State with discovery and submit to a mental examination by a state
We addressed this argument in State v. Turner,
05-2425 (La.7/10/06), 936 So.2d 89, 103. In Turner, we reversed a
district court ruling which had found article 905.5.1
unconstitutional. Specifically addressing the discovery provisions,
When a capital defendant claims to be mentally
retarded, he, too, cannot offer from the past or present that which is
favorable to his contention while simultaneously withholding
information which is unfavorable to his claim. In making a
determination of whether information or records are necessary to a
determination pursuant to La.Code Crim. Proc. art. 905.5.1 E, the
trial court should keep in mind the relevancy of the information or
records sought and La.Code Evid. art. 403. (Relevant evidence may be
excluded if its probative value is outweighed by its prejudicial
impact, confusion of issues or misleading to the jury).
Paragraph E only mandates the disclosure of
materials “relevant or necessary to an examination or determination”
of the defendant's mental retardation. A fair reading of the article
generally suggests it does not require a defendant to disclose any
information subject to the attorney-client privilege or that may be
admitted at trial on the issue of guilt. The trial court's finding
that paragraph E could possibly cause a conflict with the defendant's
Fifth Amendment rights is wholly speculative.
Turner, 936 So.2d at 103.
As an initial matter, we observe that by the time
the defense filed the motion objecting to the discovery provisions of
the code article, it had already filed the motion to quash the
indictment based on the allegation that defendant was exempt from the
death penalty because she was functionally retarded, and filed its
discovery responses which included much of the documentation relating
to her prior mental examinations. Accordingly, we find the defense
waived any issue concerning the allegedly overly expansive discovery
provisions of the statute by turning over the material unconditionally
before filing the motion challenging the constitutional validity of
the code article.
Moreover, we find the State was entitled to the
materials under the more general discovery provision of La.Code Crim.
Proc. art. 724 which provides for the production of documents and
tangible objects that are in the defendant's possession and that the
defendant intends to use in evidence at trial. In this case, because
Dr. Vigan testified at the penalty phase that he relied upon the
medical records of defendant when making his evaluation, the State
then became entitled to examine the records to impeach his testimony.
See State v. Williams, 445 So.2d 1171, 1181 (La.1984) (citing State
v. Monroe, 205 La. 285, 17 So.2d 331 (1944)) (the State “does not and
cannot know what evidence the defense will use until it is presented
at trial,” it is for this reason that the prosecution has been given
the right of rebuttal).
Lastly, the defendant fails to show her submission
of any allegedly nondiscoverable records under the code articles
prejudiced her. Cf. Bourque, 622 So.2d at 239 (before being entitled
to relief, defendant must show prejudice resulting from the state's
failure to comply with discovery procedure). Accordingly,
defendant's assignment of error lacks merit.
DEFENDANT'S PRO SE MOTIONS
(Assignments of error 6-9)
In these assignments, the defendant claims the
trial court erred when it did not entertain her pro se motion for a
change of venue and when it denied her motion for appointment of new
The defendant's pro se handwritten motion for
change of venue reads in pertinent part:
I'm not trying to tactic a delay, But only a fair
trial. I feel a fair & impartial trial “will not ” be obtained in
this parish, due to the local parish where the prosecution is pending,
and that they will affect answers of the jurors on the voir dire
examination or the testimony of any witnesses at trial. By me crime
being such a high profile case, by reason of prejudice existing in the
public minds, where the nature of my case was notorious for months.
And the community is outraged by it, influenced blisted [sic] in both
TV & newspapers where such as here at the jail CCC been “placed on
display ” for the tours of the jail, where deputy's [sic] tell tours
who I am, what I'm here for, what they think might happen to me & etc
like on 09-02-03. Bye all these things that it will make an
impossible fair trial. I feel as these factors will cumulative and
affect and deprive me of a fair and impartial trial. And that my
rights are totally being ignorant in this case.
Trial Tr., vol. III, p. 667 (Oct. 9, 2003).
In the motion for appointment of new counsel,
defendant's pleading provides:
I want some new other than David R. McClatchey
because his not willing to help me, he does not want me to take my
case to trial. And he tricked me into believing something different
and is forcusing [sic] to accept a plead [sic], that I refuse to
accept anything but my trial only. He told me his trying to save my
life I'll be better off with life anyways.
Trial Tr., vol. III, p. 669 (Oct. 9, 2003).
The trial court did not specifically address the
motion for a change of venue, but ruled as follows on the defendant's
motion for substitution of counsel:
All right. Mr. McClatchey, I realize that this
pro se [m]otion has put you in a difficult position, because her pro
se [m]otion is she wants new [c]ounsel.
All right. My position is that, if somebody has
[c]ounsel, I am not going to consider their pro se [m]otions. You
cannot have it both ways.
You have got a[l]awyer. Mr McClatchey has been
appointed by the Court to represent you. He is probably one of the
most experienced capital [a]ttorneys in the whole part of the [s]tate,
and this [m]otion to appoint new [c]ounsel is absolutely ludicrous.
I am denying it.
I am just telling you right now, Ms. Holmes, that I
am not going to consider any pro se [m]otions. You have an
[a]ttorney. Your [a]ttorney is going to be filing [m]otions for you
Trial Tr. Supp. Vol., pp. 2-3.
It is well established that motions pending at the
commencement of trial are waived when the defendant proceeds to trial
without raising as an issue the fact that the motions were not ruled
upon. State v. Williams, 97-1135 (La.App. 5 Cir. 5/27/98), 714 So.2d
258, 264; State v. Scamardo, 97-0197 (La.App. 5 Cir. 02/11/98), 708
So.2d 1126, 1129, writ denied, 98-0672 (La.7/2/98), 724 So.2d 204;
State v. Price, 96-0680 (La.App. 5 Cir. 2/25/97), 690 So.2d 191, 196.
Thus, by not adopting the defendant's motion for a change of venue,
defense counsel waived it. Furthermore, given the totality of the
prospective jurors' responses during voir dire, the defendant has not
shown that a motion for a change of venue would have had any merit and
thus no prejudice occurred when the trial court failed to rule on the
motion. See La.Code Crim. Proc. art. 921 (“A judgment or ruling
shall not be reversed by an appellate court because of any error,
defect, irregularity, or variance which does not affect substantial
rights of the accused.”).
Moreover, a trial court need not even entertain pro
se motions when a defendant is represented by counsel and entertaining
the motions will lead to confusion at trial. See, e.g., State v.
Outley, 629 So.2d 1243, 1250 (La.App. 2 Cir.1993), writ denied,
94-0410 (La.5/20/94), 637 So.2d 476 (“It is well-settled in Louisiana
that a trial court is not required to entertain motions filed by a
defendant who is represented by counsel.”)(citing State v. McCabe, 420
So.2d 955, 958 (La.1982)(“While an indigent defendant has a right to
counsel as well as the opposite right to represent himself, he has no
constitutional right to be both represented and representative.”)).
Accordingly, the defendant's assignments of error are meritless.
CAPITAL SENTENCE REVIEW
Under La.Code Crim. Proc. art. 905.9 and La. S.Ct.
Rule 28, we review 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
The district judge has filed the Uniform Capital
Sentence Report (“UCSR”) required by La. S.Ct. Rule 28 § 3(a) and the
Department of Public Safety and Corrections submitted a Capital
Sentence Investigation Report (“CSIR”). See La. S.Ct. Rule 28
§ 3(b). In addition, the State and the defense have filed sentence
Those documents and Brenda Bruce's penalty phase
testimony show defendant, Brandy Aileen Holmes, is a Caucasian female,
born on July 25, 1979, to the legal union of Johnny Holmes and Brenda
Bruce in Tylertown, Mississippi. Defendant's parents separated and
defendant moved with her mother to Shreveport when she was two years
of age. Defendant's father testified at the guilt phase concerning
the theft of the murder weapon from his residence in Mississippi.
Brenda Bruce testified at the penalty phase about defendant's
difficult birth and her consumption of alcohol during her pregnancy.
Defendant has an older sister and a younger brother, both of whom
appear to be half-siblings.31
Although the defendant claims to have one child, no evidence
presented supports that allegation.
According to the defendant's mother, the defendant
began school in special education, and she only completed the sixth
grade. Mrs. Bruce further claimed that defendant was raped at 12
years of age and was committed to a mental hospital for six months.
Defendant has an extremely lengthy juvenile and adult criminal
In fact, since the age of 14 or 15, it appears the defendant was
continuously incarcerated except for a period of approximately seven
months preceding the present offense. Defendant has no history of
PASSION, PREJUDICE, AND OTHER ARBITRARY FACTORS
The first-degree murder of Julian Brandon, Jr.,
occurred on January 1, 2003, and following jury selection, trial
commenced in February of 2006, over three years after the crime was
committed. The victim, a Caucasian male, was 70 years of age at the
time of his death. Alice Brandon, who survived being shot in the
head by defendant or Coleman, is also Caucasian, and was 68 years of
age at the time of the offense. Defendant, a Caucasian female, was
23 years old at the time of this offense. Race was not an issue at
No pretrial publicity tainted the jury pool.
Although defendant filed a pro se motion for a change of venue shortly
after her indictment, it was not pursued by counsel.
Defendant raised various instances in which she
claimed arbitrary factors were interjected into her capital trial.
However, all of these allegations were addressed in the text of this
opinion and found without merit.
The State relied on three aggravating circumstances
under La.Code Crim. Proc. art. 905.4(A) and the jury returned the
verdict of death, finding all three were supported by the evidence:
(1) the offender was engaged in the perpetration or attempted
perpetration of an armed robbery; (2) the victim was older than 65
years of age; and (3) the offender knowingly created a risk of death
or great bodily harm to more than one person La.Code Crim. Proc. art.
905.4(A)(1), (4), and (10). The State's evidence presented in the
guilt phase, and reintroduced at the penalty phase, established that,
either personally or acting as a principal, defendant shot both Julian
and Alice Brandon, and stabbed Julian Brandon. The shootings and
stabbing occurred during the defendant's armed home entry into the
Brandons' residence in which she took jewelry and credit cards from
the house, where the lawful occupants of the residence had lived
beyond their 65th birthdays. The three aggravating circumstances
relied upon by the State were fully supported by the evidence.
Consequently, the defendant's sentence of death is firmly grounded.
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), cert.
denied, 498 U.S. 1074, 111 S.Ct. 799, 112 L.Ed.2d 861 (1991); State
v. Wille, 559 So.2d 1321, 1341 (La.1990); State v. Thompson, 516
So.2d 349, 357 (La.1987), cert. denied, 488 U.S. 871, 109 S.Ct. 180,
102 L.Ed.2d 149 (1988). 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 disproportionate).
We review 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. Sonnier, 380 So.2d at 7.
The State's Sentence Review Memorandum reveals that
since 1976, jurors in the First Judicial District Court have returned
a guilty verdict in 41 capital cases, including defendant's case, and
of those, juries have recommended the imposition of the death penalty
It is appropriate for this Court to look beyond the
1st 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,
cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359 (1994).
This Court has observed that Louisiana juries appear especially prone
to impose capital punishment for crimes committed in the home. See
State v. Leger, 05-0011 (La.7/10/06), 936 So.2d 108, cert. denied, 549
U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007); State v. Blank,
04-0204 (La.4/11/07), 955 So.2d 90, cert. denied, --- U.S. ----, 128
S.Ct. 494, 169 L.Ed.2d 346 (2007); State v. Bridgewater, 00-1529
(La.1/15/02), 823 So.2d 877, cert. denied, 537 U.S. 1227, 123 S.Ct.
1266, 154 L.Ed.2d 1089 (2003) 34
; State v. Jacobs, 99-1659 (La.6/29/01), 789 So.2d 1280; 35
State v. Howard, 98-0064 (La.4/23/99), 751 So.2d 783, cert. denied,
528 U.S. 974, 120 S.Ct. 420, 145 L.Ed.2d 328 (1999); State v.
Gradley, 97-0641 (La.5/19/98), 745 So.2d 1160; State v. Robertson,
97-0177 (La.3/4/98), 712 So.2d 8, cert. denied, 525 U.S. 882, 119
S.Ct. 190, 142 L.Ed.2d 155 (1998); State v. Tart, 92-0772
(La.2/9/96), 672 So.2d 116 (La.1996), cert. denied, 519 U.S. 934, 117
S.Ct. 310, 136 L.Ed.2d 227 (1996); State v. Code, 627 So.2d 1373
(La.1993); State v. Burrell, 561 So.2d 692 (La.1990), cert. denied,
498 U.S. 1074, 111 S.Ct. 799, 112 L.Ed.2d 861 (1991); State v. Perry,
502 So.2d 543 (La.1986), cert. denied, 484 U.S. 992, 108 S.Ct. 511, 98
L.Ed.2d 511 (1987); State v. Wingo, 457 So.2d 1159 (La.1984), cert.
denied, 471 U.S. 1030, 105 S.Ct. 2049, 85 L.Ed.2d 322 (1985); State
v. Glass, 455 So.2d 659 (La.1984), cert. denied, 471 U.S. 1080, 105
S.Ct. 2159, 85 L.Ed.2d 514 (1985); State v. Summit, 454 So.2d 1100
(La.1984), cert. denied, 470 U.S. 1038, 105 S.Ct. 1411, 84 L.Ed.2d 800
(1985); State v. Williams, 490 So.2d 255 (La.1986), cert. denied, 483
U.S. 1033, 107 S.Ct. 3277, 97 L.Ed.2d 780(1987). Wingo observed in
this regard that “[t]he murder of a person by an intruder violating
the sanctuary of the victim's own home [is] a particularly terrifying
sort of crime to decent, law abiding people.” Id., 457 So.2d at 1170.
Moreover, Louisiana juries have not hesitated in
imposing the death penalty in a variety of cases involving multiple
deaths or when a defendant creates the risk of death or great harm to
more than one person. See State v. Scott, 04-1312 (La.1/19/06), 921
So.2d 904, cert. denied, 549 U.S. 858, 127 S.Ct. 137, 166 L.Ed.2d 100
2006) (two female bank tellers shot during bank robbery;
first-degree murder convictions affirmed, case remanded for hearing
under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d
335 (2002)); State v. Brown, 03-0897 (La.4/12/05), 907 So.2d 1
(couple kidnaped from their home, both shot and then found burned in
their torched vehicle); State v. Wessinger, 98-1234 (La.5/28/99), 736
So.2d 162, cert. denied, 528 U.S. 1050, 120 S.Ct. 589, 145 L.Ed.2d 489
(1999) (ex-employee returned to restaurant, shot three employees and
killed two); State v. Robertson, 97-0177 (La.3/4/98), 712 So.2d 8,
cert. denied, 525 U.S. 882, 119 S.Ct. 190, 142 L.Ed.2d 155 (1998)
(mixed-race couple stabbed to death in their home during an aggravated
burglary); State v. Baldwin, 96-1660 (La.12/12/97), 705 So.2d 1076,
cert. denied, 525 U.S. 831, 119 S.Ct. 84, 142 L.Ed.2d 66 (1998)
(defendant shot and killed his estranged wife and the three men who
were with her at the time); State v. Tart, 93-0772 (La.2/9/96), 672
So.2d 116, cert. denied, 519 U.S. 934, 117 S.Ct. 310, 136 L.Ed.2d 227
(1996) (defendant murdered his estranged girl friend and severely
wounded her mother); State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d
364, cert. denied, 519 U.S. 860, 117 S.Ct. 162, 136 L.Ed.2d 106 (1996)
(ex-employee returned to restaurant, killed one employee and attempted
to kill another); State v. Sanders, 93-0001 (La.11/30/94), 648 So.2d
1272, cert. denied, 517 U.S. 1246, 116 S.Ct. 2504, 135 L.Ed.2d 194
(1996) (husband killed estranged wife and new boyfriend); State v.
Deboue, 552 So.2d 355 (La.1989), cert. denied, 498 U.S. 881, 111 S.Ct.
215, 112 L.Ed.2d 174 (1990) (murder of two children in an apartment
defendants intended to burglarize).
Finally, with respect to La.Code Crim. Proc. art.
905.4(A)(10) and La.Rev.Stat. § 14:30(A)(5) (victim over the age of
65), juries in Louisiana have readily returned the death sentence when
the elderly are preyed upon as victims. See Draughn, supra;
Bridgewater, supra; Jacobs, supra; State v. Bowie, 00-3344
(La.4/3/02), 813 So.2d 377, cert. denied, 537 U.S. 951, 123 S.Ct. 416,
154 L.Ed.2d 297 (2002); Howard, supra; Gradley; supra; State v.
Taylor, 99-1311 (La.1/17/01), 781 So.2d 1205, cert. denied, 534 U.S.
844, 122 S.Ct. 106, 151 L.Ed.2d 64 (2001).
Compared to these cases, it cannot be said the
death sentence in this case is disproportionate.
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. art. 923 of
finality of direct appeal, and before signing the warrant of
execution, as provided by La.Rev.Stat. § 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. § 15:149.1; and (2) to
litigate expeditiously the claims raised in that application, if filed
in the state courts.
I disagree with the majority's resolution of
defendant's assignment of error No. 11 as it regards the issue of
defendant's claimed mental retardation under La.Code Crim. Proc. art.
905.5.1 and Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153
L.Ed.2d 335 (2002). Although there was perhaps no legal basis for
the district court to quash the indictment, as the majority points
out, I believe this court should nevertheless remand the case to the
district court and order that it conduct a hearing on whether trial
counsel's failure to preserve the issue of mental retardation-by
failing either to request that the jury decide the issue as authorized
by La.Code Crim. Proc. art. 905.5.1(B) or to seek a jury instruction
charging jurors that they could not return a death verdict if they
determined that the defendant was mentally retarded-constitutes
ineffective assistance of counsel under Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and/or whether the
defendant qualifies as mentally retarded under La.Code Crim. Proc.
art. 905.5.1 and Atkins, which set forth a non-waivable exemption from
capital punishment for the mentally retarded offender. See State v.
Campbell, 06-0286 (La.5/21/08), 983 So.2d 810.
Although in Campbell, the majority concluded that a
remand to the district court for it to consider the issue of mental
retardation was not warranted because the record on appeal did not
show reasonable grounds to question whether the defendant was mentally
retarded and thus exempt from capital punishment, the appellate record
in the instant case is quite different. In the case before us, Dr.
Vigen and Dr. Williams both testified prior to trial that the
defendant in their opinion met the definition of mental retardation
set out in La.Code Crim. Proc. art. 905.5.1. Therefore, in my view,
the record evidence regarding the defendant's mental retardation is
sufficient, i.e., that there is a reasonable likelihood that she is
mentally retarded, to justify a remand to the district court at this
juncture, rather than to delay the issue for resolution in
Accordingly, I respectfully dissent from the
I respectfully dissent. I believe it is error to
relegate to post-conviction relief the pivotal issue of whether the
defendant is mentally retarded and thus exempt from execution pursuant
to the United States Supreme Court decision of Atkins v. Virginia, 536
U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).
The defendant filed a “Motion to Quash Indictment,”
alleging that she suffered from “neurological and psychological
deficiencies” that disqualified her from the death penalty based on
the Supreme Court's reasoning in Atkins. The State argued in
opposition that “a factual defense to any charge (such as minority or
mental retardation at the time of offense) is not a proper ground for
a motion to quash” and that the matter should be decided by a jury.
An extensive pretrial hearing was held, and the
defendant presented testimony from a psychiatrist and a psychologist,
who both concluded that based on the definition set out in Louisiana
Code of Criminal Procedure article 905.5.1, the defendant suffered
from mental retardation. The trial court judge denied the
defendant's motion to quash, concluding that “as a matter of law that
there is no legal basis to grant the motion to quash.”
A week before trial, the defendant filed a “Motion
to Re-Urge the Motion to Quash the Indictment,” which was denied,
claiming that neuro-imaging of her brain revealed abnormalities and
impairments further establishing that she suffered from fetal alcohol
syndrome, which rendered her ineligible for execution under Atkins.
The defendant also raised the issue at the penalty phase in argument
for mitigation for sentencing when she presented evidence from three
experts alleging that she suffered from fetal alcohol syndrome.
Although Atkins prohibits the States from executing
mentally retarded persons, Atkins left to the States the task of
developing guidelines for implementation. The Louisiana legislature
has enacted LSA-C. Cr. P. art. 905.5.1, which prohibits the execution
of the mentally retarded, provides procedures for raising and trying
the issue, and defines mental retardation for the purpose of exemption
from capital punishment. LSA-C.Cr. Pr. art. 905.5.1 reflects the
legislature's preference that a jury determine all issues relevant to
a capital sentencing determination in a single proceeding.
Specifically, Art. 905.5.1. provides, in pertinent
A. Notwithstanding any other provisions of law to
the contrary, no person who is mentally retarded shall be subjected to
a sentence of death.
B. Any capital defendant who claims to be mentally
retarded shall file written notice thereof within the time period for
filing of pretrial motions as provided by Code of Criminal Procedure
C. (1) Any defendant in a capital case making a
claim of mental retardation shall prove the allegation by a
preponderance of the evidence. The jury shall try the issue of
mental retardation of a capital defendant during the capital
sentencing hearing unless the state and the defendant agree that the
issue is to be tried by the judge. If the state and the defendant
agree, the issue of mental retardation of a capital defendant may be
tried prior to trial by the judge alone.
(2) Any pretrial determination by the judge that a
defendant is not mentally retarded shall not preclude the defendant
from raising the issue at the penalty phase, nor shall it preclude any
instruction to the jury pursuant to this Section.
The majority concludes that the defendant has not
preserved the issue of mental retardation for review because she
failed to file notice, or request jury instruction regarding same.
However, Article 905.5.1 must be scrupulously followed. The fact
that the trial court judge made pretrial determinations on the issue
of the defendant's mental retardation, does not preclude the court's
instruction to the jury so that the jury can make the ultimate
determination. I believe that when the death penalty is sought, it
is incumbent upon the trial court judge to insure that when the issue
of a defendant's mental retardation is raised, the issue is determined
by the jury as legislatively mandated.
For the reasons assigned, I would pretermit review
of the merits of the defendant's conviction and sentence. Like State
v. Dunn, 2007-0878 (La.1/25/08), 974 So.2d 658 this case is now in a
post-verdict procedural posture, and must be remanded.
grand jury also charged the defendant with the attempted first-degree
murder of his wife, Alice Brandon. The court minutes of February 11,
2006, show the State dismissed Count 2 of the indictment which charged
the defendant with the attempted first-degree murder of Alice Brandon.
the outset, we note defense counsel conceded the defendant was guilty
of second-degree murder. After considering the evidence outlined
infra, the jury found the State proved otherwise.
February 17, 2005, a jury unanimously returned a verdict of guilty
against Robert Coleman, finding he committed the first-degree murder
of Reverend Brandon. The jury also returned a death verdict against
him, finding all four aggravating circumstances the State urged.
Nevertheless, on November 2, 2007, a majority of this Court reversed
Coleman's conviction and sentence, finding the State's proffered
reason for the exercise of its peremptory challenge against an
African-American prospective juror was not facially neutral and thus
violated the equal protection clause. State v. Coleman, 06-0518
(La.11/2/07), 970 So.2d 511. Accordingly, we reversed Coleman's
conviction and sentence, and remanded the case to the trial court for
a new trial. Id. at 517.
trial, Demetrius Clemens, the defendant's nephew who was nine years of
age, identified a videotaped interview in which he discussed entering
the Brandon residence with defendant. The videotape itself, exh.
120, is not included in the record provided to us, but is on file at
the Caddo Parish Clerk of Court's office.
investigation showed a close link between the defendant and Coleman.
On Christmas Eve 2002, the defendant and Coleman traveled from
defendant's father's home in Mississippi to Shreveport. The
defendant's mother picked them up and brought them to her trailer
while the couple was in Shreveport.
Williams testified that the cause of Fetal Alcohol Syndrome is the
toxic effects of alcohol on the fetus. He further stated that fetal
alcohol syndrome is a cluster of symptoms characterized by four
criteria. The following criteria must be fully met for an FAS
diagnosis: (1) growth deficiency-prenatal or post-natal height or
weight (or both); (2) three FAS facial features (shortened palpebral
fissures-that means the inner portion of the eye is shorter than
normal by two standard deviations; a flattened philtrum-that means a
flattening of the portion between the upper lip and the bottom of the
nose; and thinness of the upper lip); (3) central nervous system
damage; and (4) prenatal alcohol exposure.
this testimony was not presented to the jury, Dr. Vigan testified at
the pre-trial hearing on the defendant's motion to quash that the
defendant's full scale IQ was 77, a score that was in the borderline
range of measured intelligence.
defendant has juvenile delinquency adjudications for the following
offenses: carrying a concealed weapon; attempted simple escape;
damage to property; possession of stolen property; theft; and
unauthorized entry of an inhabited dwelling.As an adult, defendant has
felony convictions for attempted aggravated escape and aggravated
battery. In addition, she has the following misdemeanor convictions:
seven counts of simple criminal damage to property; four counts of
simple battery; and two counts of battery of a police officer.At 15
years of age, the defendant was sentenced to juvenile prison until the
age of 21 for unauthorized entry of a dwelling. While she was in
juvenile prison at the Jetson Correctional Center for Youth, she was
charged with multiple counts of battery. Ultimately she was
sentenced as an adult to two years at the Louisiana Correctional
Institute for Women.
State introduced a redacted version of this letter at the penalty
phase. Admission of this evidence is the subject of a separate
assignment of error discussed infra.
the defendant renewed her motion to quash and admitted the color
photographs of her brain, she also attached the report of the MRI and
PET Scan findings. Dr. James C. Patterson, II, an expert in
neuroimaging, found abnormalities in multiple regions of the brain
when he subjected the MRI result to objective statistical evaluation.
Although he testified that some of these abnormalities were
consistent with published results on FAS, the defendant did not have
other expected brain abnormalities, i.e., defects in the corpus
callosum; changes in the ventral frontal cortex; changes of the
hippocampus; decreased brain metabolism. In summation, Dr.
Patterson testified the only brain abnormality found in the MRI was a
dysmorphic, or funny-shaped, central nucleus of the amygdala; he
could not relate any PET scan abnormalities to published results on
points specifically to two portions of Dr. Vigan's testimony relevant
to the Bennett criteria. See pp. 53-54, supra. First, she
maintains her limited attention span would have rendered her incapable
of assisting counsel as demonstrated by Dr. Vigan's testimony that:․
Miss Holmes is sort of a story teller. She'll tell stories that will
quick[ly] bring attention. She's easily distracted in terms of being
able to stay on point and move from point A to point B to point C. She
will meander. Her listening and comprehension of ideas is poor so
it's difficult, I think it's difficult for her to understand the
abstractions of things.So for example, if you tell her, if you put
your hand into a fire, you're going to get burned, she'd understand
that. But if you tell her that A is going to stand for a certain
numerical value and B is going to stand for another numerical value
and you're going to manipulate those values, she's not going to
understand that. Or if A is equal to B and B is equal to C, she's
not going to be quick to understand that A equals C. So in terms of
abstraction and connecting ideas, which this courtroom demands, she's
going to have a greater limitation.The analogy that I used previously
I think actually in front of Judge Crichton, the courtroom-some people
come into the courtroom with one megabyte of RAM. And when they're
in my office I can teach them and get answers and work with them.
But then when you come into this courtroom, you need 100 megabytes of
RAM. She has to be able to sit and listen to my answer. She has to
listen to your question. She may have to sit and listen to [the
counsel for the State] and consider what he's saying. She has to
listen to what the judge is saying. She has to listen to witnesses.
We're talking about things that she may know something about, then
be able to help both of you and inform you. All of that is a complex
process.Trial Tr., vol. XIX, pp. 4200-01 (Nov. 10, 2005).Defendant
also points to Dr. Vigan's testimony suggesting she may make an
unsuitable witness:She is impulsive. She is emotionally reactive.
She doesn't speak well. She doesn't understand a lot of times the
import of questions, as many of us have that, but she has certainly a
deficit of that. She doesn't present as someone who takes this
seriously. She, in my interview with her, she didn't like me because
I was talking with her about how absolutely serious this is.I wasn't
trying to tell her that I was in favor of a jury giving her the death
penalty, but I was trying to talk with her about how serious the death
penalty is and how serious this whole process is. She misperceived
all of that, telling my assistants and Dr. Williams that she didn't
want to see me again because I was for her getting the death penalty
or something like that.So, it's just in my ability to really get her
to tell the truth, be accurate with the truth, as many facts as
possible; I had trouble getting that from her. You would have
trouble getting that from her probably as well. It was all
misperceived in my hour and a half interaction with her.Trial Tr.,
vol. XIX, pp. 4201-02 (Nov. 10, 2005).
e.g., one letter, the defendant penned to a friend. It reads:Hey
Chaz,I know you thought I forgot about you. No Never that Honey.
I'm Back locked up if you didn't see it on the news or in the
newspaper. Girl, yes. They got me charged with 1st degree murder
armed robbery attempted 1 st degree murder and 2nd degree murder. I
sit there and watched my Baby's Daddy kill these white folks and yes I
took the Visa card the gold Mastercard and the codes and cleaned there
Bank accounts out. They was going to Book my 15 year old Brother,
But I went ahead and took all charges & I have Affidavit to get
notarized so I can let my Baby's daddy go to[o]. You know damn well
I'm going to try my Best to escape and you know this too. I got it
mostly planned. Don't be mad, Chaz. I gotta have my Money ya know.
I goes back to court Feb. 18th 03 Girl don't worry yourself about me.
I'll be okay, I guess you know. You be cool and write me back and
tell me the low down/who all is Back up in there okay. Here's my
address okay․Love Always,Ms. BrandyTrial Tr., vol. X, pp. 2105-06
(Jan. 17, 2003).
defendant was 23 years of age when she committed the crime, she
suggests she had the emotional and mental development of a child.
Thus, she contends the holding of Roper should be applicable to her.
substance of the testimony of Dr. Williams and Dr. Vigan is detailed
at various places throughout this opinion.
the fact the issue of mental retardation, as required by statutory
law, was properly reserved for the jury and not the trial court, the
defendant neither requested that the jury definitively decide the
issue as authorized by La.Code Crim. Proc. art. 905.5.1(B) nor sought
a jury instruction charging jurors that it could not return a death
verdict if it determined defendant was mentally retarded.
Ultimately, because the defendant did not file the required notice and
argue the issue of mental retardation to the jury as required by
La.Code Crim. Proc. art. 905.5.1, the issue was not preserved for
appellate review. At this point in these trial proceedings, it is
not within our province to second-guess the wisdom of this course of
action or delve into the trial strategy that well-seasoned and
experienced capital defense counsel chose to employ. See State v.
Myles, 389 So.2d 12, 31 (La.1980) (recognizing that this Court “does
not sit to second-guess strategic and tactical choices made by trial
counsel.”) Notwithstanding, we observe the defendant presented
evidence from three experts at the penalty phase alleging she suffered
from fetal alcohol syndrome and argued that as a mitigating factor
Anthony, all three perpetrators to the restaurant robbery/murder
brought handguns and fashioned a crude silencer using potatoes which
they placed on each gun's barrel. Id., 776 So.2d at 380-81. The
planning exhibited in bringing such a device to the robbery of the
restaurant strongly suggested each gunmen anticipated using his
weapon. Even though Anthony claimed he was not the shooter, one of
the surviving victims testified the last person he saw before the
shots rang out in the walk-in cooler was defendant; the survivor
stated defendant was holding a gun with a potato on the end of the
barrel. Moreover, circumstantial evidence demonstrated that of the
three perpetrators, defendant's shoes were the most heavily encrusted
with potato particles. Accordingly, we ruled that “even without
establishing that [Philip Anthony] was the triggerman, his conviction
is valid because he was involved in a felony-murder and he intended,
from the outset, to kill these victims.” Id. at 386.
Sup.Ct. Rule 28 provides in pertinent part:Section 1. Review
Guidelines. Every sentence of death shall be reviewed by this court
to determine if it is excessive. In determining whether the sentence
is excessive the court shall determine:(a) whether the sentence was
imposed under the influence of passion, prejudice or any other
arbitrary factors, and(b) whether the evidence supports the jury's
finding of a statutory aggravating circumstance, and(c) whether the
sentence is disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant.
discussed infra, while Ward attempted to locate Wright, Captain Bobby
Abraham confronted defendant about her allegation that Wright
committed the murder. At this point, the defendant responded with a
second story about the murders, claiming that she committed the
violent entry into the Brandon home with her boyfriend, Robert
Coleman, and that she shot both Reverend and Mrs. Brandon.
further testified that he first encountered the defendant when he
asked to take a photo of the soles of her shoes during the
interrogation to determine whether they matched footprints found at
the Brandons' residence.
Duncan corroborated Abraham's testimony concerning the circumstances
of this statement. Trial Tr., vol. XIX, p. 4130 (July 21, 2005).
Case, 1 Car. & K. 130 (1843).
pertinent part, Art. 703(G) provides:When a ruling on a motion to
suppress a confession or statement is adverse to the defendant, the
state shall be required, prior to presenting the confession or
statement to the jury, to introduce evidence concerning the
circumstances surrounding the making of the confession or statement
for the purpose of enabling the jury to determine the weight to be
given the confession or statement.A ruling made adversely to the
defendant prior to trial upon a motion to suppress a confession or
statement does not prevent the defendant from introducing evidence
during the trial concerning the circumstances surrounding the making
of the confession or statement for the purpose of enabling the jury to
determine the weight to be given the confession or statement.
Assignment of Error no. 25, the defendant also complained about the
admission of evidence during the guilt phase of the murder of Terrance
Blaze, as well as defendant's participation in gang activity.
Because the defendant did not lodge a contemporaneous objection to
that evidence, we treat that assignment of error in the appendix to
this opinion and find that issue not properly before us.
also testified about defendant's involvement in the attempted burglary
of a neighbor, Lori Hendricks Griffin. Ultimately, the State did not
introduce any evidence of this incident at the penalty phase.
Crim. Proc. art. 720 provides in pertinent part:Upon motion of
defendant, the court shall order the district attorney to inform the
defendant of the state's intent to offer evidence of the commission of
any other crime admissible under the authority of [La.Code Evid. art.]
§ 14:60 defines aggravated burglary in part as “the unauthorized
entering of any inhabited dwelling ․ with the intent to commit a
felony therein, if the offender is armed with a dangerous weapon.”
One is guilty of an attempt when she has the specific intent to commit
the offense and does or omits an act for the purpose of and tending
directly toward accomplishing her object. La.Rev.Stat. § 14:27.
is a statement, other than one made by the declarant while testifying
at the present trial or hearing, offered in evidence to prove the
truth of the matter asserted. La.Code Evid. art. 801(C).
references to plea negotiations were redacted from the letter.
Accordingly, as admitted the letter read:Mr. Ed Blewer, III, Good
Evening Sir!․ Yes I did shot & kill Terrance Blaze, But only Because I
was threatting and Beatting up to do so․ Thank you and have a nice
day.Exh. P-32, vol. XXX, p. 6010 (February 15, 2006).
Evid. art. 410 reads in pertinent part:A. General rule. Except as
otherwise provided in this Article, evidence of the following is not,
in any civil or criminal proceeding, admissible against the party who
made the plea or was a participant in the plea
discussions:* * *(4) Any statement made in the course of plea
discussions with an attorney for or other representative of the
prosecuting authority which do not result in a plea of guilty or which
result in a plea of guilty later withdrawn or set aside.
trial court stated:And I will state for the record that I was
presiding judge in State of Louisiana versus Robert Coleman. And I
did ask the lawyers to work together to redact and shorten the video
of Mrs. Brandon because I wanted to make certain that it was not
something that would unduly inflame the jury, that it was not so
prejudicial that it would inflame them unnecessarily. And I wanted
to make sure that it would comply with all the jurisprudence.
Therefore, the lawyers worked in that case to redact the video such
that I think it is clearly admissible.Trial Tr., vol. XXVIII, pp.
5853-54 (Feb. 14, 2006).
her penalty phase testimony, Brenda Bruce stated she has four living
children, all from different fathers. However, the UCSR only refers
to two siblings of defendant.
UCSR reveals that defendant has juvenile delinquency adjudications for
the following offenses: carrying a concealed weapon; attempted
simple escape; damage to property; possession of stolen property;
theft; and unauthorized entry of an inhabited dwelling. As a
juvenile, defendant was also arrested for damage to property and
possession and concealing stolen property although these charges were
dismissed.As an adult, defendant has felony convictions for attempted
aggravated escape and aggravated battery. In addition, she has the
following misdemeanor convictions: seven counts of simple criminal
damage to property; four counts of simple battery; and two counts of
battery of a police officer.The district attorney dismissed the
attempted first-degree murder charge relating to the shooting of Mrs.
Brandon. The second-degree murder count relating to the homicide of
Terrance Blaze is apparently still pending in Caddo Parish.
v. Holmes (the present case); State v. Coleman, 06-0518
(La.11/02/07), 970 So.2d 511 (co-defendant in the present case;
conviction and sentence reversed on appeal based on racial
discrimination in the State's exercise of peremptory challenges);
State v. Campbell, 06-0286 (La. 5/21/08) 983 So.2d 810; State v.
Draughn, 05-1825 (La.1/17/07), 950 So.2d 583; State v. Wilson,
03-1229 (La.3/30/05), 899 So.2d 551 (death sentence vacated in light
of Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1
(2005), because Wilson was a minor at the time of the offenses;
resentenced to life imprisonment at hard labor without benefit of
parole, probation, or suspension of sentence); State v. Williams,
01-1650 (La.11/01/02), 831 So.2d 835 (following a hearing pursuant to
Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335
(2002), Williams was deemed retarded and resentenced to life
imprisonment at hard labor without benefit of parole, probation, or
suspension of sentence); State v. Irish, 00-2086 (La.1/15/02), 807
So.2d 208, cert. denied, 537 U.S. 846, 123 S.Ct. 185, 154 L.Ed.2d 73
(2002); State v. Deal, 00-0434 (La.11/28/01), 802 So.2d 1254; State
v. Edwards, 97-1797 (La.7/2/99), 750 So.2d 893, cert. denied, 528 U.S.
1026, 120 S.Ct. 542, 145 L.Ed.2d 421 (1999); State v. Hampton,
98-0331 (La.4/23/99), 750 So.2d 867, cert. denied, 528 U.S. 1007, 120
S.Ct. 504, 145 L.Ed.2d 390 (1999); State v. Cooks, 97-0999
(La.9/9/98), 720 So.2d 637, cert. denied, 526 U.S. 1042, 119 S.Ct.
1342, 143 L.Ed.2d 505 (1999); State v. Tyler, 97-0338 (La.9/9/98),
723 So.2d 939, cert. denied, 526 U.S. 1073, 119 S.Ct. 1472, 143
L.Ed.2d 556 (1999); State v. Davis, 92-1623 (La.5/23/94), 637 So.2d
1012, cert. denied, 513 U.S. 975, 115 S.Ct. 450, 130 L.Ed.2d 359
(1994); State v. Code, 627 So.2d 1373 (La.1993), cert. denied, 511
U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 490 (1994); State v. Felde,
422 So.2d 370 (La.1982), cert. denied, 461 U.S. 918, 103 S.Ct. 1903,
77 L.Ed.2d 290 (1983).Of the above-listed cases, Holmes, Coleman,
Draughn, Edwards, Cooks, and Code all involved victims that were
murdered in their own homes.
for first-degree murder and death sentence set aside; jury's verdict
of guilty modified by this Court and judgment of guilty of
second-degree murder entered; remanded to trial court for sentencing
to life imprisonment under La.Rev.Stat. § 14:30.1(B). State v.
Bridgewater, 00-1529 (La.1/15/02), 823 So.2d 877.
conviction and death sentence were reversed on appeal. State v.
Jacobs, 99-1659 (La.6/29/01), 789 So.2d 1280. During the pendency of
his retrial, the United States Supreme Court rendered its decision in
Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1
(2005)(Eighth Amendment precludes capital punishment for offenders
under the age of 18 when they committed their crimes), making Jacobs,
who was 16 years of age at the time of the offense, ineligible to face
capital sentencing on retrial.
CALOGERO, Chief Justice, dissents and assigns
reasons.JOHNSON, Justice, dissents and assigns reasons.