Antoinette Frank was a 23-year-old rookie New Orleans police officer when she and Rogers LaCaze terrorized the family-owned Kim Anh restaurant, shooting dead Officer Ronald Williams, and siblings Ha and Cuong Vu during a 1995 robbery.

Antoinette Frank (born 30th April 1971) is a former New Orleans police officer who was convicted of the murders of three people and is one ot two women on Louisiana's death row located in St. Gabriel at the Louisiana Correctional Institute for Women.

Frank had an unstable childhood, but there was one thing that was clear to her since she was a small girl: she wanted to become a policewoman.

As a teenager and, later on, young adult, Frank suffered from being a member of a broken family: her brother was a law fugitive, her father would appear in her life only occasionally, and Frank became distressed about these issues, needing psychiatric help.

According to author Chuck Hustmyre, a former policeman himself, when Frank applied to become a cop in Louisiana, she lied about her psychological and psychiatric condition in order to be hired as a policewoman.

Frank served in the New Orleans Police for less than one year and was hired despite being caught lying on several sections of her application. During a shooting, she met her future boyfriend, an alleged drug dealer named Rogers LaCaze, who had been badly injured during the shooting and who required help from Frank that night, as well as hospitalization.

Frank and LaCaze fell in love quickly. The couple shared a passionate relationship. Perhaps feeling that LaCaze brought her the solace she needed in life, Frank became so infatuated with the young man (who was 18 at the time), that she even let him drive her police car around.

On March 4, 1995, Frank and Lacaze visited Kim Anh, a Vietnamese restaurant in east New Orleans, Louisiana. As the restaurant was closing early that morning, Chau Vu, sister of two of the victims, went into the kitchen to count money.

She reentered the dining room of the restaurant to pay Officer Ronald Williams, when she noticed Frank approaching the restaurant yet again. Sensing something was wrong, Chau Vu ran back to the kitchen and hid the money in the microwave before returning to the front of the restaurant.

Using a stolen key, Frank and Lacaze entered the restaurant and began to walk quickly to the back of the building, pushing Chau, one of Chau's brothers, Quoc, and a restaurant employee along with her. Shots rang out, and Frank ran back to the front of the restaurant.

Chau, Quoc, and the employee hid in a cooler in the kitchen, concerned because they did not know the whereabouts of Chau's and Quoc's sister and brother, Ha and Cuong.

From inside the cooler, Chau and Quoc could partially see the front of the restaurant. Chau initially could see Frank, who appeared to be looking for something. Frank moved out of Chau's line of vision, and then the three hiding heard additional gunshots.

Quoc next observed Frank searching in the area where the Vus usually kept their money. He then saw her walk over to the area where he later found the bodies of his brother and sister, and he heard more gunshots. After Frank and Rogers Lacaze left the premises, Quoc emerged from the cooler and called 911 to report the murders.

Antoinette Frank had obtained an off-duty job as a security guard at the restaurant along with officer Williams, who considered her to be a friend. Frank arrived to the scene minutes after the first officers to arrive were there, and she proceeded to study the scenario where the murders took place. She approached Chau, asking her what happened. Chau found another officer and reported what she had witnessed. After Chau was interviewed in more detail, the defendant and Rogers Lacaze were arrested and charged with first degree murder

Frank and Rogers Lacaze were indicted by an Orleans Parish Grand Jury on April 28, 1995. Their trials were severed, and Rogers Lacaze was tried first on July 17-21, 1995, found guilty as charged, and sentenced to death.

Frank's trial began on September 5, 1995, and on September 12, 1995, the jury returned a guilty verdict on all counts and recommended a sentence of death as to all counts. The defendant was formally sentenced to death on October 20, 1995.

Frank's father had stayed at her home not too long before the robbery, then he disappeared. The fact that the police found a human skull with a bullet hole in his head buried under Frank's house not long after her father's disappearance, also helped her become a prime suspect of the restaurant murders.

By Gary Sheets - Nola.com

May 23, 2007

Antoinette Frank, the New Orleans police officer who led a murderous rampage in 1995 at a Vietnamese restaurant, was properly sentenced to die by lethal injection at her trial, the Louisiana Supreme Court ruled Tuesday in a 5-2 decision.

The triple killing committed by Frank during an armed robbery at the eastern New Orleans restaurant where she once worked security horrified the city and became the nadir of a historically corrupt police department. It took the jury a mere 22 minutes to determine her guilt. Sentencing her to death took less than 45 minutes.

And 12 years after being sentenced to die, the state Supreme Court again upheld the verdict.

"The death sentence imposed in this case does not appear disproportionate," Justice Catherine Kimball wrote for the majority. "Evidence at trial established the cold-blooded and callous disregard for human life exhibited in these killings. Nothing contained in the post-trial documents filed pursuant to (state law) warrants reversal of defendant's death sentence."

At issue in the appeal was not Frank's guilt or whether her trial proceeded fairly. Instead, the state Supreme Court weighed whether Judge Frank Marullo, who presided over Frank's weeklong trial, erred in refusing to find her indigent and entitled to state-paid experts to help navigate her defense through the death penalty phase.

Kimball and the rest of the majority found her death sentence properly rendered by the courts and the jury.

But Chief Justice Pascal Calogero and Justice Bernette Johnson dissented in Tuesday's ruling, finding that Frank was denied her right as a capital murder defendant to have a "meaningful consideration" of all favorable evidence.

After the jury convicted Frank of three counts of first-degree murder, it returned the next day to preside over the death penalty phase, itself a mini-trial in which almost anything is fair game for prosecutors and defense attorneys.

But Frank had no expert assistance on her side, Calogero noted. Typically, a defense attorney in a capital case hires a "mitigation expert" well-versed in digging through the personal history of the defendant in an attempt to spare her from death row.

Frank, 36, is one of two women on Louisiana's death row at the women's prison in St. Gabriel.

Emotions remain raw across New Orleans when it comes to the case of Antoinette Frank.

Together with her teenage companion, Frank killed Ronald Williams, 25, an off-duty New Orleans cop, and two of the restaurant owner's children, Cuong Vu, 17, and Ha Vu, 24. The high-profile case riveted the public as details emerged such as the fact that Frank had scored poorly on an NOPD psychological exam yet still earned a uniform, badge and gun.

Frank knew all her victims. She and Williams moonlighted as security guards for the Vu family, which ran the Kim Anh Restaurant on Bullard Avenue.

Rogers Lacaze, Frank's accomplice, also was convicted of the three murders and remains on Louisiana's death row at the prison in Angola.

Unlike most criminal trials at Orleans Parish Criminal District Court, Frank's case was handled quickly. Indicted in April 1995, Frank had been convicted and sent to death row by mid-September of the same year.

The prosecutors at the time, Glen Woods and Elizabeth Teel, had plenty of evidence to secure a conviction and a death sentence. Chau Vu, 23, and Quoc Vu, 19, who survived by hiding in a walk-in cooler, provided eloquent testimony at trial.

Woods and Teel took turns shaming Frank during the death penalty phase, assuring the jury that her death by lethal injection would be relatively painless compared to the horror inside the Kim Anh.

The state's closing argument included, "Antoinette Frank not only deserves to die, she needs to die."

But evidence of guilt is not the issue at hand, Calogero wrote.

"Notwithstanding the evidence of the defendant's guilt, I believe the absence of mitigation expert assistance prejudiced the defendant in this case and that the sentencing process was fatally flawed," Calogero wrote in a dissent joined by Johnson. "A capital defendant has an absolute right under the Eighth Amendment to introduce virtually any evidence in mitigation at the penalty phase of a capital trial."

by Charles Hustmyre

When Chau Vu saw the battered red and white Ford Torino pull into the parking lot of her family's restaurant for the third time that night – this time just before 2 a.m. – she knew something bad was going to happen. "I just had a feeling," Chau said later. "...inside, something told me it was not right."

The driver of the Torino was 24-year-old Antoinette Frank, an off-duty New Orleans police officer, who sometimes worked a uniformed, extra-duty security detail at the restaurant.

Friday night’s business had been slow, and in the early hours of this cool and drizzly Saturday morning, March 4, 1995, Chau’s mother had already left, leaving Chau, her older sister, and two teenage brothers to clean up the Kim Anh Vietnamese restaurant on the eastern edge of New Orleans, just a couple of miles from Lake Pontchartrain.

Dressed in a leather jacket, green blouse, and black jeans, Frank tugged on the glass door. She wanted to get in, but the door was locked. Frank had already been to the restaurant twice since her patrol shift ended at 11 p.m. On her second trip she'd brought someone she introduced as her nephew, 18-year-old Rogers LaCaze. Although LaCaze stood just 5-foot-2 and weighed 135 pounds, his mouthful of gold teeth and his attitude frightened Chau. She didn't like him.

"I always heard gangsters had gold teeth," Chau said.

Chau didn't like Frank much either. Officer Williams, who ran the security detail and scheduled the other officers, had been working at the restaurant since 9 p.m. After Frank had left the second time, Williams warned Chau that she was bad news. Williams didn't trust her, but although she wasn't authorized to work the detail, he had to sometimes use her to fill in for him or the other officers if one of them couldn't make it.

In the kitchen, 23-year-old Chau Vu was suddenly scared by Frank's sudden return. She had over $10,000 in cash spread out on a table, money her mother had borrowed to repair the plumbing and expand the parking lot. Chau grabbed all the money and stuffed it into the microwave oven. Her older sister, Ha, and 17-year-old brother, Cuong, were cleaning up the kitchen and saw where she hid the cash.

Quoc Vu, Chau's 18-year-old brother, stood behind the bar, talking with Officer Williams, who sat on one of barstools. As Frank shook the door, Quoc stepped away from the bar and yelled to his sister that the off-duty officer wanted to come in.

"Don't open the door!" Chau shouted from the kitchen.

With the money hidden, Chau rushed into the dinning room. Officer Williams stood up. He was just over six feet tall and weighed 225 pounds. As Frank barged into the dinning room, Williams asked her where she'd gotten the key, but she ignored him and started pushing Chau and Quoc toward the kitchen.

Officer Williams turned and had his back to the door as Rogers LaCaze slipped into the restaurant carrying a 9mm pistol in his hand.

In the kitchen, Frank said, "Chau, I need to talk to you."

"That's when I heard the shooting," Chau recalled. "Boom, boom, boom!"

LaCaze fired his first shot from close range, the muzzle of the pistol less than 18 inches from the back of Officer Williams's head.

According to the medical examiner, the trajectory was almost horizontal as the bullet severed the officer's spinal cord.

LaCaze fired again, striking Williams in the back of the neck. Then, as the officer's body tumbled toward the floor, LaCaze fired once more, the bullet tearing into Williams's back.

The killer bent over the fallen body and snatched the dead officer's pistol from its holster. Then he reached into Williams's back pocket and removed his wallet.

Frank gave Chau and Quoc one last shove, then turned and raced toward the front. Chau grabbed her brother and a restaurant employee name Vui, a 45-year-old Vietnamese woman who spoke no English, and ran toward the walk-in cooler farther back in the building. Over her shoulder, she called for Ha and Cuong to follow her, but they didn't move. Once inside the cooler, Chau and Quoc peeked through one of the glass doors and caught glimpses of Frank and LaCaze as they ransacked the kitchen. Because there was no way to lock the door from the inside, Chau's only hope was that Antoinette wouldn't think to look for them inside the cooler.

After Frank and LaCaze found the money, Frank snatched the cordless phone from its cradle at the bar. Seconds later, she stood over the kneeling forms of Ha and Cuong Vu, holding the same 9mm pistol LaCaze had just used to kill Williams. At her feet, the brother and sister held hands. They prayed and begged her not to kill them. As Quoc watched through the window of the cooler, Frank started shooting: four, five, six...10 shots total. Quoc wanted to run but Chau held him back, telling him that Frank would kill him if she saw him.

Cuong didn't die right away. "He was kind of moaning," Frank said later in a statement to homicide detectives. So she shot him again, then started looking for Chau and her brother.

According to LaCaze, when Frank couldn't find them, she looked at him and said, "One of the bitches got away."

Inside the cooler, time dragged by. Chau and the others had ducked as soon as they heard the shots, but eventually Chau stood on a rack and peeked through a window that looked out over the parking lot. A few minutes later, she saw Frank's car speeding away. After waiting several more minutes to make sure the two robbers were really gone, Chau crept out of the cooler. The restaurant was silent.

On the blood-soaked kitchen floor were Cuong and Ha Vu, both shot dead. (Cuong had been planning for a life as a Catholic priest.)

Chau kept her head low and made her way around to the bar, hoping to find Ronnie Williams, the policeman who was supposed to protect them. She found the officer behind the bar, face down on the floor.

"I saw Ronnie was lying down, with all the blood around him," Chau said.

The bar telephone was missing, but under the bar, Chau spotted her purse. In it was her new cellular phone. She grabbed her purse and ran back into the cooler. There, she dialed 9-1-1 but couldn't get through. She was terrified Frank and LaCaze would return and kill them. She called again but still couldn't reach an emergency operator. Finally, in desperation, she phoned a friend and begged him to call for help. She said, "The police officer was killed."

Quoc wanted to make sure the police were on the way. He slipped out of the restaurant and ran to a nearby friend's house to use the telephone.

Within minutes Quoc phoned 9-1-1 from his friend's house. In the recorded emergency call he repeatedly told the operator that a police officer named Antoinette and a man had come into the restaurant and started shooting everyone inside.

At the New Orleans Police Seventh District station, Officer Frank stormed through the front door. She told the desk officer that she needed to borrow a police car to respond to a shooting at the Kim Anh restaurant. She grabbed the keys to one of the marked police cars and left.

In the cooler, Chau and Ms. Vui prayed. When Chau peered outside, she saw a marked police car cruise through the parking lot, then disappear.

"There is only one police car, and then I – I still don't feel safe because I know that Antoinette is a cop." Chau’s instincts were correct: Frank, with a .38 revolver tucked inside her waistband, was the first police officer to arrive. She parked her borrowed police cruiser next door at the State Farm insurance office and headed back to the restaurant.

Within a few minutes, a second car pulled into the parking lot. It was unmarked, but to Chau it looked like a police car. Two men got out. They wore police uniforms.

Chau threw open the cooler, bolted through the front door, and ran to the unmarked police car. The two uniformed officers were Wayne Farve and Reginald Jacques, both veteran detectives. They had been working an extra-duty detail nearby when the call came over the radio of a shooting at the Kim Anh. Moments later, the dispatcher upgraded the call, saying a police officer had been shot. Police cars started racing to the scene.

Farve saw a young Vietnamese woman running toward him from the restaurant being chased by a black woman. Farve recognized the second woman as a police officer.

Behind Farve and Jacques, another unmarked police car skidded to a stop in the parking lot. A female officer jumped out from behind the wheel. She was Detective Yvonne Farve, Wayne Farve's wife and an 18-year police veteran. She didn't know Antoinette Frank.

Chau spotted Yvonne Farve and dashed into her arms.

Wayne Farve stopped Frank and asked her where the perpetrators were.

"In the back," she said.

Reginald Jacques crept around to the back while Wayne Farve went through the front door. Inside they found only the victims.

Chau was nearly hysterical but wanted to check on her brother and sister. Yvonne Farve walked her inside the restaurant.

As Frank started to follow, Yvonne Farve grabbed her arm and asked who she was.

"I'm a 26," Frank answered, giving the code for a police officer. Frank then looked at Chau Vu as if seeing her for the first time that night. "Chau, what happened to your brother and sister?"

Through her tears, Chau said, "You were there. You know everything. Why you ask me that question?"

They entered the dining room and Yvonne Farve saw her husband kneeling over the body of Ronnie Williams, checking for vitals.

"He just looked at me and shook his head," Yvonne Farve said.

In the cramped kitchen, Yvonne Farve saw the bodies of Ha and Cuong Vu. Cuong lay on his side, knees pulled up to his chest. He had been shot six times, the bullets striking him in the head, chest, abdomen, right arm, and right leg. His older sister, Ha, was still on her knees, her forehead resting against the floor. She'd been shot four times, in the head, the right arm, and the right leg.

With Frank standing out of sight behind her, Yvonne Farve asked Chau who did it.

Chau said "Antoinette" and a short black man with gold teeth had come into the restaurant. "They were shooting everybody," she said.

Not recognizing the name, Yvonne asked who Antoinette was. Chau pointed behind Yvonne Farve to Officer Antoinette Frank.

Homicide investigators, Sgt. Eddie Rantz and Det. Marco Demma, arrived at the Kim Anh restaurant about 30 minutes after the shootings.

Frank told the two detectives that she'd been in the kitchen getting something to drink when she heard gunshots in the dining room. Unarmed and without a radio to call for help, she claimed to have hustled some of the restaurant workers out through the back door, then jumped in her car and raced to the police station to report the shots. Frank said that at the station she'd told the desk officer what had happened, then grabbed a police car and returned to the restaurant to help moments before the other officers arrived.

While working a homicide, one of the first things Sgt. Rantz does is get to know the crime scene. As he walked the bloody scene at the Kim Anh, he noticed that the screen door at the back of the restaurant was locked. It made him wonder about Frank's story, so he went back to her and asked about it.

"After she told me how she'd saved those kids by leading them out the back door," Rantz later said, "I asked her how she'd managed to lock the screen door from the inside."

Frank didn't have an answer.

"That's when she started talking about Rogers LaCaze," Rantz said. "I asked her if she had a gun on her. She told me no."

The detectives heard a different story from Chau and Quoc Vu, and after hearing it, Rantz walked up to the chief of police, who'd just arrived on the scene. "I told the chief, we were about to book this motherfucker (Frank) for first-degree murder."

"She told me she didn't have a gun, but I started patting her down and I found one." From Frank's waistband, Rantz pulled a .38-revolver.

Her behavior and attitude stunned even seasoned homicide detectives. "She is, without a doubt, the most cold-hearted person I've ever met," Rantz said.

Rantz sent a team of detectives to find Rogers LaCaze while he and Demma took Frank into custody, handcuffed her, and drove her to the homicide office.

On the third floor of police headquarters, where the homicide detectives are officed, Rantz and Demma interviewed Frank for several hours. In a taped statement, Frank maintained that LaCaze had killed Officer Williams, but confessed that she had killed Ha and Cuong Vu in the kitchen.

She said she had executed the brother and sister because LaCaze had made her do it. According to her statement, Rogers handed her the gun he'd shot Williams with, and pressed the dead officer's pistol against her head. If she hadn't shot the two young Vietnamese, LaCaze would have killed her.

The detectives asked why she hadn't turned the gun on LaCaze and shot him instead of killing Ha and Cuong, or why later she hadn’t used her police radio – which they had found under the front seat of her car – to call for help.

All she said was, "I was too scared. I was frantic."

Explaining why he thinks Frank grabbed a police car and rushed back to the scene, Sgt. Rantz later said, "There's no doubt in my mind, she went back there to kill the rest of them."

Frank Meets LaCraze

Antoinette Frank met Rogers LaCaze the night of Nov. 25, 1994. While on patrol, Frank was one of several officers dispatched to the scene of a double shooting. LaCaze and a friend, Nemiah Miller, had both been shot during a drug deal gone bad.

"He got shot behind a dope deal," said Alice Chaney, LaCaze's mother. "Rogers and Nemiah had just scored, and the boy who shot them told them that he had to get it (the dope) from them. They thought he was joking, because he was their friend, but he shot them."

"Rogers was a dope dealer," Chaney added. "That was his crime."

Over the next few weeks the 24-year-old police officer visited the 18-year-old, small-time drug dealer in the hospital and at home. She bought him a cell phone, expensive clothes, even rented him a new Cadillac. LaCaze drove Frank's police car while she was working, he went on police calls with her, and on Feb. 4, 1995, a month before the Kim Anh murders, he jumped out of her patrol car with a Tec-9, 9mm pistol, and threatened to kill a man he'd gotten into an argument with at a party earlier that night.

The week before the robbery and murders at the Kim Anh restaurant, Frank reported her Beretta 9mm pistol stolen. LaCaze, who was at her house when a police officer arrived to take the report, later said that the gun hadn't really been stolen.

On the afternoon the day before the robbery, a couple of hours into her 3 p.m. to 11 p.m. patrol shift, Frank and LaCaze went to Wal-Mart together to buy 9mm bullets.

Two months before the robbery, New Orleans police detectives searched Officer Frank's house, looking for her brother Adam Frank Jr., a fugitive from Opelousas, La., who'd been staying with her. Adam Frank was wanted on two counts of attempted manslaughter and probation violation.

Adam Frank Sr., Antoinette's father, had also been living with her until September 1993, when she'd reported him missing. He hasn't been seen since.

Antoinette Frank had been interested in becoming a New Orleans police officer since she was 16-years-old, when she belonged to New Orleans Police Explorer Post 560. She wrote a letter expressing that desire. In it, she said:

I perceive myself to be a strong young woman with guts and who is willing to endure any obstacles to become the best law enforcement officer I can be.

But at Opelousas High School, where she graduated in 1989, the self-proclaimed "strong young woman" was a non-entity. She doesn't even appear in any of the yearbooks during her years there. Mrs. Hertz, one of her homeroom teachers remembered, "She didn't make any impression on me, good or bad."

In early 1992, Frank began her quest to become a New Orleans police officer, yet almost from the start there were problems. On both her application and during the interview with the police investigator assigned to conduct her background investigation, she spun a story about being transferred from a Wal-Mart in Opelousas to one in New Orleans, yet the Opelousas store’s personnel department told the investigator that Frank had been fired for "personality conflicts with other associates" and was not eligible for rehire.

Despite the lie, the police investigator rated Frank as an acceptable police applicant.

In March 1992, as part of the application process, Frank took two widely used, standardized personality assessments. The psychologist who reviewed her test scores ranked her as "poor," the lowest score possible, in the areas of tolerance, open-mindedness, and impulse control; and ranked her as "below average" in stability, maturity, and the probability of adjusting to organizations. Among other concerns, the psychologist cited Frank's extreme lack of tolerance and flexibility, and suggested a psychiatric evaluation.

Later, at the conclusion of that evaluation, the psychiatrist who interviewed Frank rated her as unacceptable in integrity, forthrightness, and willingness to accept responsibility. The doctor concluded by saying, "I do not feel...that the applicant is suitable for the job of police officer."

For a few days in January 1993, Frank disappeared after meeting with an attorney in a downtown office building. Her father, who had been waiting for her outside, filed a missing person's report with the police after finding a note his daughter had left behind that said, "I was doomed since the day I was born...I hate myself and my life."

But Frank did eventually turn up, and two weeks later the New Orleans Police Department hired her. In July 1993, she graduated from the Police Academy and was issued New Orleans police badge No. 628.

According to her patrol supervisor and other officers who worked with her, Frank was a lousy cop.

Because of the case's high profile, and the international media attention it had garnered, the New Orleans district attorney decided to try LaCaze and Frank separately. LaCaze went to trial first. In a risky move, he took the stand in his own defense, attempting to recant the taped confession he had given to detectives.

"They beat me," he said. "The inside of my mouth was busted. That's documented at Central Lock Up."

He admitted he'd been at the restaurant earlier with Frank, but said he was across town shooting pool with his brother when the robbery took place.

But, according to a statement his brother gave to the police, LaCaze told him "Antoinette really fucked up." Rogers admitted to his brother that they had planned the robbery for about a week, that he had shot the policeman, but said Frank had shot the other two.

The jury heard the taped statement LaCaze had given to detectives the morning after the shootings. On the tape, LaCaze explained that Frank was mad at Officer Williams.

"Ronnie always be fucking her over," he said. "He be messin' over her, and they (the Vu family) do anything he say."

According to LaCaze, "She was going to get them motherfuckers."

While LaCaze denied being at the restaurant during the shootings, the one thing he couldn't deny was that he had used Officer Williams's credit card to buy $15.29 worth of gas just 45 minutes after the murders.

Dismissing the mountain of evidence against his client, Willie Turk, LaCaze's defense attorney, said after the trial, "If Rogers had not used that credit card, he would have gotten off."

In July 1995, just four months after the gruesome murders, the jury found LaCaze guilty of three counts of first-degree murder and sentenced him to death by lethal injection.

From his tiny cell on death row, LaCaze still maintains his innocence, claiming he is as much a victim as Ronald Williams, and Ha and Cuong Vu.

While in prison, Rogers received a note from Frank. It was short, and said only, "Stick to your innocence. I'm proud of you. God keep you."

Antoinette Frank's trial began six weeks after LaCaze's ended. During her trial, the jury toured the murder scene. In the kitchen, Det. Marco Demma showed jury members where they'd found the bodies of Ha and Cuong Vu. "You can see it is a small confined area, and the bodies were close together on the floor..."

After the state presented its case, Frank's defense team rested without calling any of their 39 potential witnesses, or introducing any evidence.

In October 1995 the jury sentenced Frank to death for the murders of Officer Ronald Williams and Ha and Cuong Vu.

A month after the jury sentenced Frank to die by lethal injection, a dog uncovered human bones under the house where she lived with her father, whom she had reported missing two years before.

Experts who examined the remains – an arm, a leg, sections of spine, and a skull – have not been able to make a positive identification, but have determined that they are those of a man about the same age as Frank's father. From death row, Frank denies any knowledge of the skeletal remains, and refuses to provide DNA samples for comparison.

The skull has a bullet hole in it.

After more than seven years as the only woman on Louisiana's Death Row, Frank continues to file appeals, claiming she is the victim of Post Traumatic Stress Disorder, both inherited from her missing father, a Vietnam War veteran, and caused by her father, whom she now claims molested her when she was a child.

In their appeals, Frank's lawyers fight for a new penalty phase and another chance in front of a jury that could change her death sentence to a life sentence.

Remarking on what could happen should Frank win an appeal, Attorney Frank Larre' said, "The best she can get is life in prison."

Frank sits in a cell at the women's prison in St. Garbiel, La., awaiting execution.

The Vu family still owns and operates the Kim Anh restaurant.

Chau Vu and Mary Williams, Officer Williams's widow, have become close friends and see each other often.

CrimeMagazine.com

Blue on Blue: Murder, Madness and Betrayal in the NOPD

By Chuck Hustmyre

Saturday, March 4, 1995. 1:55 A.M. New Orleans

Antoinette Frank stood in the cramped kitchen of the Kim Anh restaurant, a 9mm pistol clutched in her hand. Kneeling on the dirty floor at Franks feet were 17-year-old Cuong Vu and his 24-year-old sister, Ha.

Cuong was an altar boy at St. Brigid Catholic Church. He played high school football and wanted to be a priest. Ha was considering becoming a nun. Both worked long hours at their parents restaurant.

Frank fired nine bullets into them.

Ha Vu died instantly. When detectives found her, she was still on her knees, her forehead resting on the floor.

Cuong took longer to die. Frank shot him repeatedly in the chest and back, but his young athletes heart continued to beat. Frank heard him trying to talk, so she shot him again. This time firing two bullets into Cuongs head.

Frank and her partner-in-crime, an 18-year-old thug named Rogers LaCaze, ransacked the Bullard Avenue restaurant until they found what they were looking for money.

Frank and LaCaze bolted through the dining room. On their way to the front door they passed Ronnie Williams. Williams was a 25-year-old New Orleans police officer assigned to the 7^th District. His shift had ended at 11 p.m. and he had come straight to the restaurant to work a security detail. Williams needed the extra money. Ten days earlier his wife had given birth to the couples second son, Patrick.

Still in his police uniform, Officer Ronnie Williams was face down behind the bar in a pool of blood. Hed been shot twice in the head and once in the back.

LaCaze had Ronnie Williamss gun and his wallet.

Outside, Frank and LaCaze piled into a battered 1977 Ford Torino. As the car screeched out of the parking lot, a sun-yellowed cardboard sign fluttered on the dashboard in front of the steering wheel. Printed on either end of the foot-wide rectangular placard was the star and crescent symbol of the New Orleans Police Department. In the center of the sign, between the symbols, were the words NEW ORLEANS POLICE OFFICER ON DUTY.

The sign and the car belonged to Officer Antoinette Frank, a New Orleans cop who worked out of the 7^th District. She, too, had just gotten off at 11 p.m. Frank was on the same platoon, and worked the same shift, as Williams. The two officers had worked together every day for more than a year.

A Police Department in Despair

Few would deny that in 1995 the New Orleans Police Department was in sad shape. The agency was losing about 100 officers per year, many of them fired or arrested, and hiring only half that many.

In 1994, two officers were arrested for murder. One for killing a man the officer suspected of breaking into his apartment; the other for ordering the execution of a woman who had filed a brutality complaint against him.

Then in December 1994, the FBI arrested 10 New Orleans cops on federal drug trafficking charges.

CBSs Mike Wallace branded New Orleans The No. 1 city in the nation for police brutality and corruption. Mayor Marc Morial told Time magazine, I inherited a police department that was a shambles.

By the start of 1995, things were bad, but they were about to get a lot worse.

Officer Antoinette Frank "the woman who would become the poster child for police misconduct and the living symbol of a department gone bad" had just met Rogers LaCaze.

Just past his 18th birthday, LaCaze already had a history of violence and drug peddling. His mother, Alice Chaney, kicked him out of the house when he was 17. "Rogers had become a dope dealer," she says.

At the end of 1994, LaCaze got shot. He told police that he and his friend, Nemiah Miller, were hanging out when another friend, a 19-year-old who went by the name "Freaky D," whipped out a gun and opened fire on them.

Alice Chaney has her own opinion for the reason behind the shooting. "It was behind a dope deal," Ms. Chaney says. "Rogers and Nemiah had just scored."

Miller died. LaCaze went to the hospital. One of the investigating officers was Antoinette Frank.

Warning Signs

Frank said she always wanted to be a police officer. Born in Opelousas, she was a member of the Opelousas Junior Police and the New Orleans Police Explorers. When she turned 20, Frank applied to the New Orleans Police Department.

Almost immediately, Franks application ran into problems. The applicant investigation unit discovered Frank had been fired from Wal-Mart and had lied about it on her application. She also scored poorly on two standardized psychological evaluations. The psychologist who reviewed Franks tests recommended a psychiatric interview.

Dr. Philip Scurria, a board-certified psychiatrist, evaluated Frank on 14 characteristics relevant to the job of a police officer. He rated Frank as unacceptable or below average in most. In his report, Dr. Scurria wrote that Frank seemed shallow and superficial. He concluded by saying, I do not feel ... that the applicant is suitable for the job of police officer.

Apparently depressed over her faltering job prospects, Frank disappeared. She left a half-baked suicide note addressed to her father at a downtown office building. Her dad filed a missing-persons report, but Frank turned up the next day.

Less than three weeks later the police department hired her anyway.

A Twisted Duo

After LaCaze got out of the hospital, he started getting regular visits from Officer Frank. She took him shopping for new clothes. She got him a pager and a cell phone. She even rented him a Cadillac.

Frank became obsessed with him, LaCaze says.

She started driving him around in her police car. She even answered calls with LaCaze and introduced him as her trainee. Two officers from the 7^th District once saw LaCaze driving Franks patrol car. Then, the two of them started hatching a plan to rob the Kim Anh restaurant.

Frank had been splitting the security detail at the family-owned Vietnamese restaurant with Officer Ronnie Williams for months. During that time, the Vu family, who owned the restaurant, grew close to Frank and Williams. They treated Frank almost like a member of the family.

The Vus took a real liking to her, Franks ex-partner says. I mean they were in love with this girl. They bought her presents for this, presents for that. Anything she wanted, anything she needed, they gave her.

Frank knew the Vus distrusted banks. She also knew they kept all their money in cash.

During the weeks leading up to the robbery, Frank acquired a 9mm pistol from the NOPD evidence room. Two weeks before the murders, she reported the gun stolen.

LaCaze was with Frank when a police officer arrived at her house to take the report about the stolen gun. LaCaze later told detectives that the report was bogus. The pistol hadnt been stolen.

Just hours before they robbed the Kim Anh and murdered three people, Frank and LaCaze stopped at Wal-Mart to buy a box of 9mm bullets. Frank was on the clock, wearing her police uniform and driving a patrol car.

Crime Scene Chaos

As soon as they heard the explosion of gunshots from the dining room, 23-year-old Chau Vu and her 18-year-old brother Quoc ran and hid in the restaurant's walk-in cooler. Chau slammed the door shut as Quoc killed the lights. The two of them huddled in the cold darkness.

Through the glass doors at the front of the cooler and a window overlooking the kitchen, the pair caught glimpses of Frank and LaCaze as they rummaged for cash. They heard shouting, crying, more gunshots. Then silence.

After she was sure Frank and LaCaze had left, Chau crawled into the dining room. Her cell phone was in her purse on a shelf beneath the bar. She saw Ronnie Williams body on the floor.

"I saw Ronnie was lying with all the blood around him. That's when all my confidence was gone because the person that protects us was lying right there," Chau later said.

Chau grabbed her cell phone and scrambled back into the cooler. She dialed 911 but couldn't get through. She called a friend and begged him to call the police for her. The friend asked what happened. The battery in Chau's phone died.

Quoc slipped out the back door and ran to a friend's house to call police. On the way out, he passed the bloody bodies of his brother and sister.

Several blocks away, Frank was fuming. "One of the bitches got away," she told LaCaze.

Frank had seen Chau and Quoc inside the restaurant when she and LaCaze went in, but she'd lost sight of them and couldn't find them again.

After dropping LaCaze off at his apartment, Frank drove to the 7th District. There, she hopped into a patrol car and raced back to the restaurant. She had a second gun a .38 revolver tucked into the waistband of her jeans.

Sgt. Eddie Rantz, who supervised the homicide investigation, says, "There's no doubt in my mind she went back there to kill the rest of them."

Whether that was Frank's intent, she never got the chance.

Chau hid in the cooler until she saw police officers in the parking lot; then she bolted out the front door and dove into the arms of Detective Yvonne Farve.

Frank stayed at the restaurant. She caught a break because Chau was so scared she would only speak Vietnamese at first.

In the initial confusion at the crime scene, lead investigators Sgt. Eddie Rantz and Det. Marco Demma had no idea that the young 7th District officer was one of the shooters. They thought they had caught a break because one of their witnesses was a trained police officer.

When the detectives questioned her, Frank told them she had been in the kitchen getting something to drink when she heard gunshots in the dining room. She said she tried to push all the employees out through the back door.

Ha and Cuong wouldn't leave, Frank said. They stayed in the kitchen. Frank told Rantz she drove to the 7th District station to report the shooting.

But Frank had a cell phone and a police radio with her. Why didn't she call, instead of wasting time driving to the station? Rantz asked. Why did she leave everybody, including a wounded police officer, behind?

"That's when she started talking about Rogers LaCaze," Rantz says. Frank wasn't a witness, the veteran detective realized. She was a suspect. "I wanted to vomit," Rantz recalls.

Soon enough, Chau calmed down and told her story in English. Quoc returned to the restaurant and also told the detectives what happened.

Rantz and Demma had heard enough. Rantz approached Chief Richard Pennington in the parking lot. Pennington, a veteran detective, had been on the scene for a while but was letting the detectives run the show. "I told the chief, 'We're about to book this motherfer with three counts of first-degree murder,'" Rantz says.

Later, at police headquarters, with a tape recorder in front of her, Antoinette Frank confessed to shooting Ha and Cuong Vu in the kitchen of the Kim Anh restaurant. Her justification was simple: Rogers LaCaze made her do it.

The robbery, Frank said, was all LaCaze's idea. He'd been talking about it for a couple of weeks. She just went along with it because she didn't know what else to do.

Although ballistic evidence later proved the same 9mm pistol was used to murder all three victims, Frank refused to admit to shooting Officer Ronald Williams. She blamed that murder on LaCaze.

Detectives found LaCaze at his brother's apartment in Gretna just a few hours after the murders. It turned out that about 45 minutes after LaCaze left the Kim Anh restaurant, he used Officer Williams's credit card to buy $15 worth of gas at a station three blocks from his brother's apartment.

After his arrest, LaCaze admitted that he went into the restaurant with a gun but denied that he shot anyone. Frank, he said, committed all three murders. He just happened to be there.

Aftermath

Rogers LaCaze went on trial in July 1995. He testified in his own defense. It was a bad move.

Against his attorney's advice, LaCaze, a high school dropout with an IQ later measured in the low 70s, pitted himself against lead prosecutor Glen Woods. Woods is a soft-spoken contemplative man, but he has a mind like a scalpel, which he had used to slice people apart on the witness stand. In the battle of wits with Glen Woods, Rogers LaCaze was severely outmatched.

In the end, LaCaze was reduced to blubbering on the stand and begging the jury to spare his life. "I did not pull no trigger and kill them people," he pleaded. "I don't even know them people."

Them people. They had names, and Glen Woods knew them well: Ha Vu, Cuong Vu, Ronnie Williams. Seeking justice for them was one of the defining moments of Woods' career. "They were people, they had a life, they had aspirations, they had dreams," he says.

The jury convicted LaCaze of murder and recommended he be put to death.

Antoinette Frank went on trial two months later. After prosecutors Woods and Elizabeth Teel rested the state's case, Frank's attorneys threw in the towel. Although they'd subpoenaed nearly 40 witnesses, they didn't call a single one.

The jury took just 40 minutes to convict Frank of three counts of first-degree murder. They recommended the death penalty.

After hearing the recommendation from the jury, Woods said, "It would have been a mockery of justice if Antoinette Frank was to walk away without getting the death penalty."

In October 1995, Judge Frank Marullo sentenced Antoinette Frank to death by lethal injection. LaCaze got the same.

A month later, a dog found the remains of a human skeleton buried beneath Frank's house. It was the same house she once shared with her father. Frank reported her father missing a year-and-a-half before the murders at the Kim Anh restaurant.

There was a bullet hole in the skull.

Looking Back

A decade after the case that rocked the New Orleans Police Department and outraged the city and the nation, much has changed.

Under Chief Richard Pennington, the police department completely revamped its hiring practices. It weeded out bad officers and hired good ones. Under Chief Eddie Compass, the healing process continues.

Still, as bad as the old hiring system was, in the case of Antoinette Frank, it worked at least initially. The police department had a minimum of four glaring indicators of Frank's unsuitability for the job before they hired her.

Lying on her application and pre-employment interview, two failed psychological evaluations, her disastrous interview with the department psychiatrist, her strange disappearance and half-hearted suicide note all were well known to NOPD before they offered Frank a job.

So, why did they hire her?

In the early 1990s, the department was severely short handed. They needed anybody who could fit into a police uniform. Crime was ripping the city apart. In 1994, the year before the Kim Anh murders, New Orleans was the murder capital of the United States. The residency requirement restricted the police department to hiring only those applicants who lived within Orleans Parish. To this day, that policy still prevents NOPD from hiring well-qualified officers who live in surrounding parishes.

And in a city that often simmers with racial tensions, Antoinette Frank, as a black female, fit the profile they were looking for. Hiring her allowed the police department to chalk up one more hash mark for their nonexistent, never-talked-about quota system.

As to why she did what she did, Frank now says it's her father's fault. She claims to have suffered years of emotional, physical, and sexual abuse at his hands. It's a claim she only recently started making.

But a psychiatrist who examined Frank in 1995 and again in 1999 said she showed symptoms of Narcissistic Personality Disorder with anti-social features. According to the psychiatrist, Frank exhibits a lack of empathy toward others, a feeling of entitlement, flies into rages, and is manipulative in relationships.

Rogers LaCaze has a simpler diagnosis. In a letter from prison, he said, Antoinette is crazy. Hell, she killed her own dad and buried him under her house.

After 27 years on the job, Eddie Rantz retired. He went to law school and has a spacious office on Poydras overlooking the Superdome. Sometimes he still thinks about the case and about Antoinette Frank.

She is, without a doubt, the most cold-hearted person Ive ever met, Rantz says.

Prosecutors Glen Woods and Elizabeth Teel are both in private practice. Teel says the LaCaze and Frank trials were the most traumatic of her career. Id be lying if I said it wasnt personal.

In his office, Woods keeps a picture of Ha and Cuong Vu. "It's shocking the way they died," he says. The picture reminds him of the evil that exists in the world.

Mary Williams, wife of Officer Ronnie Williams, is busy raising their two boys, Christopher and Patrick. She has grown very close to the Vu family. They see each other often.

The Vus still own the Kim Anh restaurant.

Antoinette Frank and Rogers LaCaze are on death row, waiting to die and blaming everyone else, including each other, for what happened.

As for those human bones unearthed beneath Frank's house, so far, authorities have made no serious effort to identify them. The 10-year-old case, they say, remains under investigation.

TruTV.com

Supreme Court of Louisiana

State v. Frank

Frank J. Larre, Metarie, Denise LeBoeuf, New Orleans, Nicholas J. Trenticosta, Counsel for Applicant.Richard P. Ieyoub, Attorney General, Harry F. Connick, District Attorney, Valentin M. Solino, Susan E. Talbot, Counsel for Respondent.

This is a direct appeal from a conviction of first degree murder and a sentence of death.  La. Const. art. V, § 5(D).  The defendant's appeal is based on a total of thirty-two assignments of error.¹  However, the principal issues involve (1) the denial of the defendant's pre-trial motion to be declared indigent for the purposes of obtaining state-funded experts;  and (2) the denial of the defendant's motion for change of venue.   We find that none of the defendant's arguments concerning the guilt phase of her trial constitute reversible error;  therefore, the defendant's conviction is affirmed.   However, we find that the trial court erred by failing to declare the defendant indigent for the purpose of allowing her the opportunity to show entitlement to state-funded psychiatric and mitigation expert assistance for the sentencing phase of her trial.   The defendant's case is, therefore, remanded to the trial court in order for it to hold an evidentiary hearing as to whether the defendant was entitled to state-funded expert assistance for the penalty phase of her trial.   If, after a hearing on the matter, the court determines she was so entitled, it is to vacate the defendant's sentence and order a new penalty phase at which the defendant will have the benefit of that expert assistance.   If the trial court finds that the defendant cannot make the proper showing of need for obtaining state funds, the defendant may appeal that decision to this court along with the other assignments of error regarding the penalty phase of her trial, the merits of which we do not reach at this time.

Facts

On March 4, 1995, the defendant, then an officer with the New Orleans Police Department, and Rogers Lacaze were arrested and charged with three counts of first degree murder for the deaths of Ronald Williams, Ha Vu, and Cuong Vu. The murders occurred in the early morning hours at the Kim Anh Restaurant in New Orleans East. The Vu family owned the restaurant, and Ronald Williams was an off-duty police officer performing security detail that evening at the restaurant.   The defendant had occasionally worked at the restaurant as a security guard and was familiar with the Vu family and Ronald Williams.   She and her co-defendant visited the restaurant several times on the night of the murders.

As the restaurant was closing early that morning, Chau Vu, sister of two of the victims, went into the kitchen to count money.   She reentered the dining room of the restaurant to pay Ronald Williams, when she noticed the defendant approaching the restaurant yet again.   Sensing something was wrong, Chau Vu ran back to the kitchen and hid the money in the microwave before returning to the front of the restaurant.   Using a stolen key, the defendant entered the restaurant and began to walk quickly to the back of the building, pushing Chau, one of Chau's brothers, Quoc, and a restaurant employee along with her.   Shots rang out, and the defendant ran back to the front of the restaurant.   Chau, Quoc, and the employee hid in a cooler in the kitchen, concerned because they did not know the whereabouts of Chau's and Quoc's sister and brother, Ha and Cuong.   From inside the cooler, Chau and Quoc could partially see the front of the restaurant.   Chau initially could see the defendant, who appeared to be looking for something.   The defendant moved out of Chau's line of vision, and then the three hiding heard additional gunshots.   Quoc next observed the defendant searching in the area where the Vus usually kept their money.   He then saw her walk over to the area where he later found the bodies of his brother and sister, and he heard more gunshots.   After the defendant and Rogers Lacaze left the premises, Quoc emerged from the cooler and called 911 to report the murders.

After police officers arrived on the scene, the defendant returned to the restaurant as well.   She approached Chau, asking her what happened.   Chau found another officer and reported what she had witnessed.   After Chau was interviewed in more detail, the defendant and Rogers Lacaze were arrested and charged with first degree murder.

The defendant and Rogers Lacaze were indicted by an Orleans Parish Grand Jury on April 28, 1995.   Their trials were severed, and Rogers Lacaze was tried first on July 17-21, 1995, found guilty as charged, and sentenced to death.   The defendant's trial began on September 5, 1995, and on September 12, 1995, the jury returned a guilty verdict on all counts and recommended a sentence of death as to all counts.   The defendant was formally sentenced to death on October 20, 1995.

Motion to be Declared Indigent

In her first six assignment of errors, the defendant argues that the trial court abused its discretion in not finding her indigent.   She further argues that she was entitled to make a showing of need for state-funded experts, but that her right was foreclosed by the court's denial of her motion on indigent status.   See State v. Touchet, 93-2839, p. 6 (La.9/6/94), 642 So.2d 1213, 1216 (holding that “for an indigent defendant to be granted the services of an expert at the expense of the state, he must establish that there exists a reasonable probability both that an expert would be of assistance to the defense and that the denial of expert assistance would result in a fundamentally unfair trial”).

On August 29, 1995, approximately one week before the defendant's trial was to begin, the trial court conducted a brief evidentiary hearing on the defendant's motion to have herself declared indigent.²  The court allowed the defendant to take the stand and testify as to her financial status and  ability to pay for the expert services she was requesting that the state fund.   The defendant testified that her mother had retained counsel for her, that neither she nor her family owned any real property, that she owned a nineteen-year-old Ford Elite which she bought for $600, that she had accrued benefits with the New Orleans Police department but did not know how much or how she could access the money, and that her mother had sold her furniture for approximately $6000.00, which was used to pay pre-existing obligations and her attorney's fee.

The trial court denied her motion on the following day, stating that she was not indigent.³  In its November 27, 2000, per curiam to this court on the issue of the defendant's indigent status, the trial court explained that it had not found the defendant indigent, because it found that she had certain funds available for her defense, consisting of $3800.00 in pension benefits, $1800.00 from furlough time, and $6000.00 from the sale of her furniture.   Therefore, the trial court based its finding on the fact that, at most, the defendant at one time had available the approximate sum of $11,600.00 for her defense.

A trial court must consider several factors before determining whether a defendant is indigent and may review its determination at any time during the proceedings.  Louisiana Rev.Stat. 15:147(B)(1) provides that:

In determining whether or not a person is indigent and entitled to the appointment of counsel, the court shall consider whether the person is a needy person and the extent of his ability to pay.   The court may consider such factors as income or funds from employment or any other source, including public assistance, to which the accused is entitled, property owned by the accused or in which he has an economic interest, outstanding obligations, the number and ages of dependents, employment and job training history, and level of education.

See also State v. Adams, 369 So.2d 1327, 1329 (La.1979) (citing La.Rev.Stat. 15:147 and 15:148);  W. LaFave and J. Israel, 2 Criminal Procedure § 11.2(e) (1984) (“recognizing that the Supreme Court has never offered a specific definition of indigency, but noting that most jurisdictions consider the following factors:  (1) income from employment and governmental programs such as social security and unemployment benefits;  (2) money on deposit;  (3) ownership of real and personal property;  (4) total indebtedness and expense;  (5) the number of persons dependent on the appellant for support;  (6) the cost of the transcript on appeal;  and (7) the likely fee of retained counsel for the appeal.”).

Applying these factors for determining indigency to the evidence adduced at the August 29, 1995, hearing and through the trial court's investigation into the defendant's benefits from the police department, the record reflects the following:  (1) defendant initially retained defense counsel through her mother;  (2) defendant had been terminated from the police force and was receiving no income;  (3) defendant had accrued retirement benefits of approximately $3,800, which the trial court ordered to go directly to the court reporters;  (4) defendant had access to approximately $1800.00 from furlough time;  (5) defendant did not own any real property;  (6) defendant owned a 1976 Ford Elite for which she paid $600, and which was impounded by police;  (7) defendant had sold all her furniture and effects two weeks after her arrest for approximately $6,000;  (8) defendant had her mother use money from sale of furniture to pay existing debts and attorney's fees;  (9) defendant's mother did not own any real property and is disabled;  and (10) defendant had $600 in savings at the time of her arrest, and nothing in savings at the time of the indigency hearing.   In addition, with the motion to proceed as an indigent, defendant and both her attorneys submitted affidavits indicating that defendant had exhausted all of her personal funds.

Under the standards set forth in our jurisprudential and statutory law, the defendant was indigent for the purposes of obtaining state-funded expert assistance.   Even if, at one time, the defendant may have had access to approximately $11,000.00, Louisiana law provides that the trial court may reassess a determination of indigency at any time, in recognition of the fact that a defendant's financial status may not be static and that a defendant may become indigent at any point in the proceedings.   See La.Rev.Stat. 15:147(A)(1)(a) (providing that a determination of indigency “may be reviewed by the court at any ․ stage of the proceedings”);  State v. Barnes, 496 So.2d 1056, 1059 (La.App. 4th Cir.1986) (finding that a defendant is considered indigent for sentencing  purposes if he is found to be indigent at any point in the proceedings, including while on appeal);  State v. Huffman, 480 So.2d 396, 398-99 (La.App. 4th Cir.1985) (same).

On August 29, 1995, the defendant testified that the $6000.00 received for her furniture had already been used to satisfy pre-existing obligations and to pay attorney's fees.   Further, the trial judge ordered that the money the defendant had accrued in her retirement fund go directly to the court reporters for transcripts.   At most, under the trial court's calculation, the defendant was left with approximately $1800.00 at the time of the pre-trial hearing.   Even assuming she had access to that money to pay counsel and assuming that the entire $6,000 in proceeds from the sale of defendant's furniture all went to counsel's fee, that sum is low compared to what a reasonable retained counsel might charge to represent someone in a capital case.   We further note that eight months after the defendant's trial ended, the same trial judge declared her indigent for purposes of her appeal, although the record reflects no change in the defendant's financial status from the pre-trial hearing.

Thus, we find that the trial judge abused his discretion in not declaring the defendant indigent at the pre-trial hearing.   However, that determination does not end the inquiry, as the court must now consider what, if any, prejudice the defendant suffered as a result of not being declared indigent.

In Ake v. Oklahoma, 470 U.S. 68, 76, 105 S.Ct. 1087, 1092, 84 L.Ed.2d 53 (1985), the United States Supreme Court construed the Fourteenth Amendment's due process clause to guarantee that, in a prosecution against an indigent defendant, the state “take steps to assure that the defendant has a fair opportunity to present his defense.”   One “step” the state must take is to ensure that the indigent defendant is provided with effective assistance of counsel.  Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).   A further component of the state's obligation to provide effective assistance of counsel is to also furnish the indigent defendant's counsel with all of the “ ‘basic tools of an adequate defense.’ ”  Ake, 470 U.S. at 77, 105 S.Ct. at 1093 ( quoting Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 433, 30 L.Ed.2d 400 (1971)).

The Court in Ake held that a state-funded psychiatric expert is a “basic tool” for a defendant's case, “when the defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial․” 470 U.S. at 83, 104 S.Ct. at 1096.   This court has extended  the constitutional right of indigent defendants recognized in Ake to other types of expert assistance considered crucial to an indigent's defense.

For example, this court has held that the right to a private investigator may in many cases be an adjunct to the right to counsel, because furnishing counsel to the indigent defendant is not enough if counsel cannot secure information on which to construct a defense.  State v. Madison, 345 So.2d 485, 490 (La.1977) (citing United States v. Johnson, 238 F.2d 565, 572 (2d Cir.1956) (Frank, J., dissenting);  Note, The Indigent's Right to an Adequate Defense:  Expert and Investigational Assistance in Criminal Proceedings, 55 Cornell L.Rev. 632 (1970);  Note, Right to Aid in Addition to Counsel for Indigent Criminal Defendants, 47 Minn.L.Rev. 1054 (1963);  ABA Standards for Criminal Justice Relating to Proving Defense Services (1967), § 1.5 and commentary).   In Madison, the court reiterated the fundamental principle that the kind of trial a man gets cannot be made to depend on the amount of money he has.  Id. (citing Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956)).   Therefore, when an indigent defendant shows that his attorney is unable to obtain existing evidence crucial to the defense, the means to obtain it should be provided for him.  Id. (finding that indigent defendant in that case had not made a sufficient showing of need to justify the procurement of an investigator).

In State v. Craig, 93-2515, 93-2654, 93-2589, p. 13 (La.5/23/94), 637 So.2d 437, 446-47, the court upheld a trial court decision ordering payment for the services of an investigator, a psychologist, and a mitigation expert, finding that those services were necessary to provide the indigent defendant with an adequate opportunity to present his defense.   However, the court in Craig recognized that an indigent defendant's unlimited right to state-funded expert services would carry with it a great potential for abuse.  Id. at 446.   Therefore, the court emphasized that an indigent defendant wishing to obtain funding for the production or gathering of any evidence must make a showing of the necessity for those services.  Id. at 447.

This court addressed the specific issue of what showing an indigent needs to make in order to obtain state-funded expert assistance in more detail in State v. Touchet, 93-2839 (La.9/6/94), 642 So.2d 1213.   In that case, the court elaborated on its holding in Craig, stating that:

Henceforth, for an indigent defendant to be granted the services of an expert at the expense of the state, he must establish that there exists a reasonable probability both that an expert would be of assistance to the defense and that the denial of expert assistance  would result in a fundamentally unfair trial.   To meet this standard, a defendant must ordinarily establish, with a reasonable degree of specificity, that the assistance is required to answer a substantial issue or question that is raised by the prosecution's case or to support a critical element of the defense.   If the trial court finds that the indigent defendant is able to meet this standard, it is to authorize the hiring of the expert at the expense of the state.

Id. at 1216.

The court's most recent pronouncement on this subject is found in State v. Jones, 97-2593, p. 4 (La.3/4/98), 707 So.2d 975, 977, where it held that the retention of private counsel from a collateral source of funds at no cost to the defendant did not affect a defendant's ability to prove indigency.   The court recognized that regardless of whether a defendant derives any assistance from an ancillary source, “[t]he determinative question is the defendant's indigency” in assessing whether he or she is entitled to make a showing of need for state-funded expert assistance.  Id. The court further suggested that even if a defendant retains counsel at his own expense, he may still be eligible for state-funded auxiliary services, but his alleged indigency status should be more closely questioned.  Id. The Jones court concluded that a defendant, who has private counsel retained by a collateral source, may still be entitled to state funding for expert assistance provided he or she can meet the requirements articulated in Touchet.  Id. at 977-78.

The court has made clear that an indigent defendant is entitled to present a trial court with evidence of his or her need for state-funded expert assistance at a hearing on the matter.   See Touchet, 642 So.2d at 1221.   In the present case, the trial court precluded the defendant from making such a showing of need by refusing to find her indigent in the first place.   While the defendant filed an ex parte application for expert funding, specifically requesting psychiatric/psychological expert assistance for both the guilt and penalty phase of her trial and a mitigation expert/social worker for the penalty phase and providing how much that assistance would cost, the trial court failed to address the application or hold a hearing on the matter.⁴  As a result, the defendant argues she was forced to  go to trial without necessary expert assistance, which prejudiced her ability to present an adequate defense at both the guilt and penalty phase.⁵

Regarding the defendant's request for psychiatric and/or psychological expert assistance for the guilt phase of her trial, her argument that the trial court's error in not finding her indigent precluded her from making the appropriate showing of need for this assistance is without merit.   Louisiana law is well-settled that evidence of mental condition or defect is inadmissible at the guilt phase of a capital case unless the defendant has pleaded not guilty by reason of insanity.  State v. Koon, 96-1208, p. 19 (La.5/20/97), 704 So.2d 756, 768;  State v. Deboue, 552 So.2d 355, 366 (La.1989);  State v. Lecompte, 371 So.2d 239, 243 (La.1978), on rehearing, (La.5/21/79).   The defendant never argued that she was insane or incompetent to proceed at trial, and, therefore, she was not entitled to admit psychiatric testimony as to her mental condition during the guilt phase in the first place.   Therefore, the trial court's finding that the defendant was not indigent had no bearing whatsoever on the outcome of her case during the guilt phase of the trial.

However, because both this court and the Supreme Court have repeatedly stressed that a capital defendant has the right to introduce virtually any evidence in mitigation during the penalty phase of a capital trial, we find the trial court committed error in not allowing the indigent defendant the opportunity to make a showing under Touchet as to her need for state-funded assistance for the purpose of presenting any such mitigating evidence.   See State v. Brumfield, 96-2667, p. 50 (La.10/20/98), 737 So.2d 660, 686 (citingLockett v. Ohio, 438 U.S. 586, 605-606, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978);  State ex rel. Busby v. Butler, 538 So.2d 164 (La.1988)).   By not allowing a hearing on the matter, the trial court did not provide this court with adequate information upon which to review the question of whether the defendant was entitled to the expert assistance she requested for the penalty phase of her trial and what prejudice she may have suffered as a result of not  obtaining state-funded assistance.⁶  See State v. Prestridge, 399 So.2d 564, 581 (La.1981) (stating that when an indigent defendant has been denied funds to obtain expert assistance, the issue on review becomes whether the denial of funds substantially prejudiced the defendant at trial);  State v. Monroe, 397 So.2d 1258, 1266 (La.1981) (finding that the indigent defendant was not substantially prejudiced by the denial of expert assistance at trial).

We therefore find it necessary to remand the case for an evidentiary hearing at which the defendant will be afforded the opportunity to make the necessary showing under Touchet for obtaining state-funded expert assistance.   If she is able to meet the standards provided in Touchet, the trial court is to vacate the defendant's sentence, order a new penalty hearing, and order that state funds be procured so that the defendant may hire the requested experts to assist her defense at the sentencing hearing.   If the trial court finds that the defendant can not make the proper showing of need, the defendant may appeal that decision to this court along with the other assignments of error concerning the penalty phase of her trial.

The defendant's conviction is affirmed for the reasons that her indigent status did not have any effect on her case during the guilt phase of the trial and because we do not find that any of her other arguments constitute reversible error.

Motion for Change of Venue

In her seventh, eighth, ninth, and tenth assignments of error, the defendant argues that the trial court erred by denying her motion for a change of venue.

After the first two individuals on the first panel of prospective jurors were examined, defense counsel filed a motion to change venue on grounds that widespread publicity in the parish had deprived the defendant of the opportunity for a fair trial.   The trial court expressed some surprise that defense counsel had not filed a pre-trial motion on this issue, but recognized that the motion could be filed at any time at which it appeared the defendant's Sixth Amendment Rights were being  violated.   The trial court allowed the motion to be made, but ordered that jury selection continue.   Jury selection was completed in one day.   On the following morning, September 6, 1995, the trial court heard arguments from both sides on the motion for change of venue and ultimately denied the motion.

A defendant is guaranteed an impartial jury and a fair trial.   To accomplish this end, the law provides for a change of venue when a defendant demonstrates his inability to obtain an impartial jury or fair trial at the place of original venue.  State v. Bell, 315 So.2d 307, 309 (La.1975) (citing Groppi v. Wisconsin, 400 U.S. 505, 91 S.Ct. 490, 27 L.Ed.2d 571 (1971);  Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967);  Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966);  Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965);  Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963)).

The specific provision of Louisiana law providing for a change of venue is found in La.Code Crim.Proc. art. 622:

A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot be obtained in the parish where the prosecution is pending.

In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.

This article was adopted as part of the Code of Criminal Procedure in 1966.   It changed the test used previously in Louisiana to determine whether a change of venue was necessary.   The former rules had been concisely stated in State v. Scott, 237 La. 71, 85, 110 So.2d 530, 535 (1959) (citations omitted):

The burden of establishing that an applicant cannot obtain a fair trial in the parish where the crime was committed rests with him.   The test is whether there can be secured with reasonable certainty from the citizens of the parish a jury whose members will be able to try the case on the law and evidence, uninfluenced by what they may have heard of the matter and who will give the accused full benefit of any reasonable doubt arising either from the evidence or the lack of it.   The power to grant a change of venue rests in the sound discretion of the trial judge, whose ruling will not be disturbed in the absence of a showing of clear abuse thereof.

However, the legislature found this judicial interpretation deficient in that it confused the separate and distinct grounds for challenging objectionable jurors for cause and for change of venue.  Bell, 315 So.2d at 309.   Thus, when Article 622 was enacted, the legislative intent regarding the  separate nature of the two tests for challenging jurors and changing venue was expressed in the Official Revision Comment, which stated that the former “test for change of venue, as interpreted by the jurisprudence, is much weaker than was intended by the express language used in [the former statutory provision].”   Quoted in Bell, 315 So.2d at 310.   The Comment went on to explain that under Scott, the test for change of venue was “nothing more than valid grounds for challenges for cause.”  Id. The legislature, therefore, found that:

These [sic] leads to the conclusion that if the defendant cannot successfully challenge for cause he has no grounds for a change of venue;  and furthermore, that if he does challenge for cause and the objectionable jurors are thus removed he has no grounds for change of venue.   Logically, therefore, change of venue did not exist as a concept separate from challenge for cause․

The foregoing suggests that the emasculated change of venue test as announced by the supreme court has no value.   It is thus clear that the change of venue concept must be one which overrides the challenge for cause concept and is to be superimposed upon the entire proceeding.   A change of venue ought to be available even though, individually, each juror is not susceptible to a valid challenge for cause, if the defendant can show that overriding all of these things and superimposed upon all of them he still cannot get a fair trial.   The change of venue concept should operate where the state of the public mind against the defendant is such that jurors will not completely answer honestly upon their voir dire, or witnesses will be so affected by the public atmosphere that they will not testify freely and frankly.

It is the purpose of the second paragraph of this article to effect such a policy and to overcome the jurisprudence in the cases cited above.

Id. (citations omitted).

After considering the Revision Comment and the language of Article 622, this court in Bell enumerated several relevant factors that would help guide the judiciary in determinations of whether to change venue under the new provision.   Those factors are:  (1) the nature of pretrial publicity and the particular degree to which it has circulated in the community, (2) the connection of government officials with the release of the publicity, (3) the length of time between the dissemination of the publicity and the trial, (4) the severity and notoriety of the offense, (5) the area from which the jury is to be drawn, (6) other events occurring in the community which either affect or reflect the attitude of the community or individual jurors toward the defendant, and (7) any factors likely to affect the candor and veracity of the prospective jurors on voir dire.  Bell, 315 So.2d at 311.

The court instructed that under the new provision, it was no longer appropriate for a trial court to only inquire as to whether the individual prospective jurors could be fair and impartial and uninfluenced by what they had heard or had seen outside the court.  Bell, 315 So.2d at 313.   The focus must extend beyond the prejudices and attitudes of the individual venire persons, and the defendant must be allowed to show that, even if it would be possible to select a jury whose members were not subject to a challenge for cause, that there exists prejudice or influences within the community at large that would affect the jurors' answers during voir dire or the testimony of witnesses at the trial, or that for any other reason, a fair and impartial trial could not be held in the parish.  Id. The trial court's ultimate determination must be of the community's attitude toward the defendant.  Id.

Shortly after the Bell decision, the court addressed the issue again in State v. Rudolph, 332 So.2d 806, 809 (La.1976), where it reiterated that, “under the test set forth in article 622 of the Code of Criminal Procedure, the fact that a jury can be selected, i.e., that the requisite number of jurors are not subject to a valid challenge for cause, does not mandate the conclusion that a motion for change of venue was properly denied by the trial court.”   The court further explained that a change of venue may be necessary to ensure a fair trial even if, individually, each juror is not susceptible to a valid challenge for cause, because the overriding state of the public mind against the defendant may cause the jurors not to answer completely honestly during voir dire.  Id.

While the legislature may have changed the test previously used in this state to determine whether venue should be changed under Article 622, the Bell court noted that the burden of proof on the defendant to show actual prejudice and the discretion accorded the trial court were not changed.  Bell, 315 So.2d at 309-10.   The burden of proof remains on the defendant to show that there exists such prejudice in the collective mind of the community that a fair trial is impossible.⁷  State v.  Vaccaro, 411 So.2d 415, 424 (La.1982) (citing State v. Adams, 394 So.2d 1204 (La.1981);  State v. Williams, 385 So.2d 214 (La.1980);  State v. Felde, 382 So.2d 1384 (La.1980);  State v. Sonnier, 379 So.2d 1336 (La.1979), on rehearing 379 So.2d 1368 (La.1980)).   Whether the defendant has made the requisite showing is a question addressed to the trial court's sound discretion which will not be disturbed on review in the absence of an affirmative showing of error and abuse of discretion.  Id.

Both this court and the United States Supreme Court have instructed that the defendant cannot meet his burden merely by showing that there exists public knowledge of the facts surrounding the offense or the alleged offender.  Dobbert v. Florida, 432 U.S. 282, 303, 97 S.Ct. 2290, 2303, 53 L.Ed.2d 344 (1977);  Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961);  State v. Hart, 96-0697, p. 6 (La.3/7/97), 691 So.2d 651, 655;  State v.Comeaux, 514 So.2d 84, 90 (La.1987).   As the Supreme Court noted in 1961, “[i]n these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity․” Irvin, 366 U.S. at 722, 81 S.Ct. at 1642.   Therefore, the defendant must prove more than mere public knowledge or familiarity with the facts of the case to be entitled to have his trial moved to another parish;  rather, the defendant must show the extent of prejudice in the minds of the community as a result of such knowledge or exposure to the case before trial.  State v.  Wessinger, 98-1234, p. 7 (La.5/28/99), 736 So.2d 162, 172;  State v. Connolly, 96-1680, p. 5 (La.7/1/97), 700 So.2d 810, 814-15.

We have recognized, though, the inherent difficulty of presenting direct evidence of community-wide prejudice against a defendant and acknowledged that positive proof of such prejudice is not always available.   Rudolph, 332 So.2d at 809.   Therefore, on review of a denial of change of venue, this court and the United States Supreme Court primarily inquire as to the scope and nature of publicity to which prospective jurors in a community have been exposed and examine the lengths to which a court must go to impanel a jury that appears to be impartial, in order to ascertain whether prejudice existed in the mind of the public which prevented the defendant from receiving a fair trial.   See, e.g., Murphy v. Florida, 421 U.S. 794, 802-03, 95 S.Ct. 2031, 2037, 44 L.Ed.2d 589 (1975), State v. Hoffman, 98-3118 (La.4/11/00), 768 So.2d 542.

The seven factors enumerated by this court in Bell facilitate a court's inquiry into the nature and scope of publicity disseminated in the community where a crime occurred.   This court in State v. David also distinguished extensive media coverage that is primarily factual in nature from that which is attended by inflammatory factors, such as racial strife, murder of a law enforcement officer, or an egregious event such as a televised confession.   425 So.2d at 1247.   The United States Supreme Court has also cautioned that courts must distinguish largely factual publicity from that which is invidious or inflammatory, as they present real differences in the potential for prejudice.  Murphy, 421 U.S. at 800, 95 S.Ct. at 2036, n. 4.

Additionally, this court and the United States Supreme Court have often examined the number of jurors excused for cause for having fixed an opinion as another gauge of whether prejudice exists in the public mind.   Murphy, 421 U.S. at 803, 95 S.Ct. at 2037-38;  State v. Wessinger, 98-1234, p. 7 (La.5/28/99), 736 So.2d 162, 173.   The Supreme Court reasoned that in a community where the majority of prospective jurors will openly admit to a disqualifying prejudice, the reliability of other jurors' assurances that they are impartial and have no preconceived notion may be drawn into question. Murphy, 421 U.S. at 803, 95 S.Ct. at 2037.   The Court went on to reason that this is because it is more likely that those jurors who claim impartiality are part of a community hostile towards the defendant and therefore they may have been influenced by the community feeling, even if unwittingly.  Id. Yet, the Court also warned that:

“To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard.   It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.”

Id. at 800, 95 S.Ct. at 2036 (quoting Irvin, 366 U.S. at 723, 81 S.Ct. at 1642).

As these cases demonstrate, there is not a bright line test for determining the degree of prejudice existing in the collective mind of the community.   There is no established minimum level of exposure to negative publicity or percentage of challenged jurors that illustrates a corruptive atmosphere mandating venue transfer.  Hoffman, 768 So.2d at 555;  Wessinger, 736 So.2d at 173.   Therefore, this court has advised analyzing the question of whether a change of venue was required due to the number of prospective jurors whose ability to be impartial had been corrupted by publicity by comparison to other cases.⁸  Wessinger, 736 So.2d at 173.

In the present case, the court's inquiry as to whether a change of venue was necessary due to the alleged prejudice existing in the collective mind of the community is limited to a review of voir dire of the prospective jurors as the defendant never presented any evidence as to the scope and nature of the allegedly prejudicial pre-trial publicity.⁹  Although the record reveals that a great majority of the venire had been exposed to some kind of publicity surrounding the case (110 out of 113), no direct  evidence was admitted to demonstrate the prejudicial or inflammatory nature of the publicity to the court.   When specifically asked whether the publicity they had seen was positive or negative, many of the jurors responded it was negative;  yet, neither the court nor counsel inquired as to what the jurors meant by “negative”.   Further, when a couple of jurors were questioned more closely on the issue, several stated that the publicity had been mainly factual in nature and that the media had simply reported the facts surrounding the crime, the arrests, and the outcome of the co-defendant's trial.

As previously discussed, nearly every potential juror had been exposed to some publicity surrounding this case, with approximately 89% of them having been exposed to information on more than one occasion or in multiple sources.   Approximately 40 of the 113 jurors questioned ¹⁰ (35%) admitted having developed negative feelings or opinions about the defendant at some point preceding her trial due to all of the publicity surrounding the case and her co-defendant's conviction.   Seventy-seven people were excused for cause.   Approximately 17 out of those 77 were excused because they expressed an inability to put aside a pre-conceived disposition or outside information and be impartial toward the defendant.   An additional 19 of the prospective jurors who were excused in part because they opposed the death penalty also indicated that they had pre-formed opinions regarding the case which would prevent them from being impartial.

While these numbers are significant, it is important to note that nearly all of the potential jurors who expressed that they had formed any pre-conceived opinions about the defendant were excused either for cause or upon challenge by defense counsel.   Further, the majority of those prospective jurors who stated they had developed a negative feeling or opinion from the publicity to which they were exposed, expressed to the court that they would be able to put those feelings aside and fairly evaluate whatever evidence was presented at trial.

Out of those selected to serve on the jury, only one person, Juror Bartley, had expressed having had an initial negative opinion regarding the defendant's guilt due to the publicity immediately following the occurrence of the crime.   Ms. Bartley, however, stated before the court that she no longer held that opinion and would be able to fairly evaluate the evidence in order to determine if the state had proved its case beyond a reasonable doubt.

While the record demonstrates that there was extensive knowledge within the community about the case in general, the defendant has failed to present sufficient evidence of an overriding prejudice within the community's collective mind that prevented her from receiving a fair trial.   Most jurors responded that they were aware of the case, that the publicity they recalled was negative, but that they would be able to put aside that information and act impartially as a juror.   Those jurors who expressed a pre-conceived negative opinion concerning the defendant's role in the crime that could not be put aside were excused for cause.   Those prospective jurors only made up approximately 20% to 25% of the total venire.¹¹  These percentages are not so high or outrageous as to justify any presumption of community-wide prejudice.   Additionally, as discussed earlier, there was no direct evidence before the court as to the allegedly inflammatory nature of the pre-trial publicity.   In conclusion, we do not find that this is a case in which the trial judge abused his discretion in denying a change of venue.

Challenges for Cause

In assignments of error numbers eleven and twelve, the defendant argues that the trial court erred by denying the defense challenges for cause as to potential jurors McDermott and Kutcher.   Defendant argues that trial court abused its discretion in not excusing Mr. McDermott, an attorney, because, during voir dire, he stated that, while he had formed some negative opinions from the information he had read in the newspaper, he was “trained” to put aside such prejudice and focus on the evidence.   As to Ms. Kutcher, the defendant points to her statements that she had negative feelings against the defendant because of publicity surrounding the case.

The trial court is vested with broad discretion in ruling on challenges for cause, and its ruling will be reversed only when a review of the entire voir dire reveals the judge abused his discretion.  State v. Robertson, 92-2660, p. 4 (La.1/14/94), 630 So.2d 1278, 1281;  State v. Cross, 93-1189, p. 7 (La.6/30/95), 658 So.2d 683, 686.   When a potential juror forms an opinion of the defendant's guilt that is derived from news publicity, the trial court should grant the defendant's challenge for cause of the prospective juror unless the “ ‘juror declares, and the court is satisfied, that he can render  an impartial verdict according to the law and the evidence.’ ”  State v. Smith, 491 So.2d 641, 646 (La.1986) (quoting La.Code Crim.Proc. art. 797(2)).

A trial court's refusal to excuse a prospective juror for cause is not an abuse of discretion, even when the juror has expressed an opinion seemingly prejudicial to the defendant, if the juror, upon further inquiry or instruction, demonstrates that he or she is willing and able to decide the case impartially and according to the law.  Robertson, 630 So.2d at 1281;  Cross, 658 So.2d at 687;  State v. Copeland, 530 So.2d 526, 534 (La.1988).   A juror need not be totally ignorant of the facts involved with the case.  State v. Harper, 430 So.2d 627, 636 (La.1983).   If a juror who has acquired knowledge about the case through the media can sufficiently lay aside his or her impression of the defendant's guilt or innocence and render a verdict based on the evidence presented, he or she is competent to serve as a juror.  Id.

Both potential jurors challenged in the defendant's assignments of error consistently affirmed their ability to put aside any negative impressions or opinions they had formed as a result of the publicity and decide the case fairly and impartially.   Regarding potential juror McDermott, the defendant argues that the trial judge erred in not excusing Mr. McDermott because during defense questioning it emerged that he had been exposed to publicity about the case from reading the newspaper and had formed a negative opinion as a result.   However, Mr. McDermott also stated that, “while I may have an opinion of this moment, I would base my decision on the evidence presented.”   He also stated that “I do not have an opinion that would bias me in the performance of my duty as a juror.”   The record further reveals Mr. McDermott's ability to serve as an impartial juror:

COURT:  And, you mentioned that you had an opinion about it?---from all that reading---at on point.   And, I think it is a proper question of whether or not it was a negative opinion or not

JUROR:  Upon reading the newspaper, I have a negative opinion.

COURT:  Okay. Can you put that opinion aside at this time and view the evidence and make you decision solely on the evidence?

JUROR:  Yes.

Accordingly, it does not appear that the judge erred in denying the challenge for cause.

With respect to potential juror Ms. Kutcher, defendant points to the following exchange:

DEFENSE:  Have you heard about this on the news?

JUROR:  Somewhat.

DEFENSE:  Have you seen anything positive about Ms. Frank on the television?

JUROR:  No.

DEFENSE:  And, have you had conversations with either friends or associates or family members about this case?

JUROR:  Some.

DEFENSE:  And, were all of those conversations negative in reference to Ms. Frank?

JUROR:  I'm sure they were, pretty much.

DEFENSE:  Okay. I want to ask you, can you remember hearing anything positive about Ms. Frank as a result of what you have seen from the reports and the discussions with those people?

JUROR:  No.

DEFENSE:  And, do you come here today with no opinion as to her guilt or innocence?

JUROR:  I wouldn't say that I don't have an opinion, but I will say that I would have to listen to the evidence presented here to make any decision as to that.

DEFENSE:  But, you have negative feelings, and those negative feelings stem directly from what you have heard about this case?

JUROR:  Yes.

However, defense counsel fails to cite to the state's questioning of Ms. Kutcher in which she answered that she could put the publicity out of her mind and listen to the evidence presented in the courtroom.   Ms. Kutcher additionally stated:

I have negative feelings, but what I think and what the facts are as presented in Court, you know what happens here as far as the evidence goes, I know the rules are that she [defendant] doesn't have to do anything.   It is his [prosecutor's] job to prove it ․ And, I don't think that what I think would be biased at all with what I heard about before this.   I would make a rational decision.

Thus, the trial judge did not err in denying the challenge for cause.   Ms. Kutcher, although expressing some reservations initially, stated that she could be fair and decide the case solely on the evidence presented in the courtroom.

Both Mr. McDermott and Ms. Kutcher initially expressed that they had developed some negative opinions about the defendant.   However, both also demonstrated that they could be fair and decide the case solely on the evidence presented in the courtroom.   Therefore, these assignments of error lack merit.

Incomplete Record

In this assignment of error, the defendant claims that her right to a full and fair review on direct appeal has been violated because the record is incomplete.

Article I, § 19 of the Louisiana Constitution guarantees defendants a right of appeal “based upon a complete record of all the evidence upon which the judgment is based.”   Material omissions from the transcript of the proceedings at trial bearing on the merits of an appeal will require reversal.    See State v. Robinson, 387 So.2d 1143 (La.1980) (reversal required when record failed to contain the testimony of a state and defense expert witness);  State v. Ford, 338 So.2d 107 (La.1976) (reversal required when record was missing the testimony of four state witnesses and the voir dire of prospective jurors).   On the other hand, inconsequential omissions or slight inaccuracies do not require reversal.   See State v. Goodbier, 367 So.2d 356, 357 (La.1979) (reversal not required when record does not include a transcript of the voir dire examination and affidavit of court reporter indicated that counsel made no objections during voir dire). Finally, a defendant is not entitled to relief because of an incomplete record absent a showing of prejudice based on the missing portions of the transcripts.  State v. Castleberry, 98-1388, p. 29 (La.4/13/99), 758 So.2d 749, 773 (citing State v. Hawkins, 96-0766 (La.1/14/97), 688 So.2d 473).

As an initial matter, we recognize that the court itself has had its doubts about the completeness of the record in this case at times.   However, as discussed earlier, only one transcript of a proceeding that took place on September 1, 1995, was found to be missing and to contain material information regarding the defendant's argument on indigency.   See n. 2. Because the court obtained that transcript and, in part, based its determination that the defendant was in fact indigent on the information contained in that transcript, the defendant can hardly claim she was prejudiced by its initial absence from the record.

Further, regarding the indigency issue, defense counsel points out in this assignment of error that there is no transcript of a hearing held after the defendant's trial where the trial judge apparently found that the defendant was indigent for purposes of her appeal.   The only reference in the record to this hearing is the trial judge's statement on March 15, 1996, that, “we had a full hearing as to whether or not Antoinette Frank or her mother had any funds․ I questioned the mother under oath.”   We agree that it would have been helpful to have had a transcript of that hearing.   However, the court already considered the fact that the defendant was later found indigent without any apparent change in circumstances and held that the judge abused his discretion in not earlier declaring her to be indigent.   Therefore, again, the defendant was not prejudiced by this omission from the record.

The other dates of which defense counsel complains of the lack of transcription include many days during which no testimony was taken and no argument was heard by the trial court.   On none of the days complained of, other than the post-trial hearing discussed above, did any proceeding  material to the defendant's appeal take place.   Therefore, those omissions do not constitute reversible error.¹²

Conclusion

The defendant's conviction is affirmed.   However, the case is remanded to the trial court in order for it to hold an evidentiary hearing as to whether the defendant was entitled under Touchet to state-funded expert assistance for the sentencing phase of her trial.   If the court determines she was so entitled, it is to vacate the defendant's sentence and order a new penalty phase at which the defendant will have the benefit of that expert assistance.   If the trial court finds that the defendant can not make the proper showing of need for state funds, the defendant may appeal that decision to this court along with the other assignments of error regarding the penalty phase of her trial.

FOOTNOTES

1.   The assignments of error not discussed in this opinion do not constitute reversible error and are governed by well-settled principles of law.   Those assignments are reviewed in an unpublished appendix that will comprise a part of the official record in this case.

2.   Upon the court's initial review of the transcript of the August 29, 1995, hearing, it was the court's belief that the defendant had moved for and had been denied indigent status at some earlier hearing, although there was no transcript of any other hearing on the matter.   This belief was based on transcribed statements made by the court and defense counsel at that hearing referring to a previous motion and on the fact that the defendant had filed a writ application with this court in July, 1995, seeking review of the trial court's refusal to find her indigent.   This court therefore entered an order on November 13, 2000, that the trial court confirm that there was such a hearing and, if there had been one, provide this court with a supplemental transcript of that earlier proceeding. The trial court responded on November 27, 2000, that there had been no other hearing on the defendant's indigent status prior to August 29, 1995.Additionally, when the trial court submitted its per curium on November 27, 2000, it also provided this court for the first time with a partial transcript from a hearing on September 1, 1995, at which the defendant's indigent status was again discussed.   This court subsequently obtained a full transcript of that proceeding on November 29, 2000.   This is only one example of the abysmal condition of the record in this case when it was turned over to this court for review and to what lengths the court has had to go to obtain all transcripts relevant to this proceeding.   Despite the court's diligent efforts from the beginning to obtain a full record, it discovered at the late date of November 27, 2000, that a transcript of an important proceeding was still missing.The trouble the court has faced in obtaining the whole record in this case unnecessarily delayed its ability to thoroughly and expeditiously review the case.   However, we do not anticipate facing this problem again, as the Rules of the Supreme Court were recently amended to provide that in all capital cases, “[t]he district judge in the court in which the case was tried ․ shall certify that the record conforms to the requirement of this section [that the record contain complete transcripts of all proceedings] before it is lodged in this Court.”   La. Rules of Court (A)(I)(6)(e) (emphasis added).

3.   The following day, the court also ruled that the defendant would have to pay for all transcripts and photographs after having investigated the defendant's retirement funds.   The Court stated:Mr. Jenkins, I have determined that there is some three-thousand dollars plus that is in the retirement fund for Ms. Antoinette Frank. Those monies should be secured and they are to pay for transcripts, the transcript today and the transcript that was done over the weekend.   Those monies---I have asked Mr. Hand who is a member of that Board to explain the way that that money is to go directly to these Court Reporters for the numbers of transcripts that they have had to do at your request.   So there will be no free transcripts.

4.   At the August 29, 1995, hearing on the defendant's indigent status, defense counsel also verbally asked the court to consider the defendant indigent so she could hire a crime scene expert.   On September 1, 1995, the district attorney stated for the record that it was his understanding that the defendant was seeking state funds in part for a blood spatter expert.   However, the defendant's application to the trial court for an ex parte hearing on her motion for funds for expert assistance did not include a request for a crime scene expert.   Her application specifically requested funds for a psychiatrist/psychologist for trial and sentencing and a mitigation expert for the penalty phase only.   Further, on appeal, the defendant's argument focuses on the denial of funds for psychiatric and mitigation expert assistance during the penalty phase of the trial.   There was no argument raised as to the defendant's need for a crime scene expert or that the defendant was prejudiced by the lack of one at trial.

5.   In response to the defendant's request for state-funded psychiatric expert assistance, the state has made much of the fact that the defendant refused to be examined pre-trial by a lunacy commission.   However, we do not agree with the state's position that the defendant's refusal to cooperate with a court-appointed psychiatrist for the purpose of determining whether she was competent to stand trial, when she testified for the record that she believed she was competent, means that she would not cooperate with any other evaluation for purposes of presenting mitigating evidence.

6.   While the United States Supreme Court has not specifically answered the question of what constitutional standard of review applies to a trial court's denial of state funds for expert assistance in an indigent's defense, many of the federal circuit courts apply a harmless error standard.   See, e.g., Tyson v. Keane, 159 F.3d 732 (2nd Cir.1998), cert. denied, 526 U.S. 1027, 119 S.Ct. 1270, 143 L.Ed.2d 365 (1999);  Tuggle v. Netherland, 79 F.3d 1386, 1392-93 (4th Cir.1996), cert. denied, 519 U.S. 894, 117 S.Ct. 237, 136 L.Ed.2d 166 (1996);  Brewer v. Reynolds, 51 F.3d 1519, 1529 (10th Cir.1995), cert. denied, 516 U.S. 1123, 116 S.Ct. 936, 133 L.Ed.2d 862 (1996);  Starr v. Lockhart, 23 F.3d 1280, 1291-92 (8th Cir.1994), cert. denied, 513 U.S. 995, 115 S.Ct. 499, 130 L.Ed.2d 409 (1994),.

7.   Louisiana courts also recognize that in unusual circumstances prejudice against the defendant may be presumed.  State v. Brumfield, 96-2667 (La.10/20/98);  737 So.2d 660, 677;  State v. David, 425 So.2d 1241, 1246 (La.1983).   This exception to the general rule that the defendant must prove actual prejudice evolved from a series of United States Supreme Court cases in which the Court found that the defendant was denied due process regardless of whether he had demonstrated “isolatable prejudice”.   In those cases, the Court held that the pervasive and inflammatory nature of publicity to which the community had been exposed and/or the procedure employed by the state involved such a high probability that the accused would be prejudiced, that the whole procedure had to be deemed lacking in due process.   See, e.g., Rideau v.Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963) (holding that it was a denial of due process to refuse the request for a change of venue after the people of the parish had been exposed repeatedly and in depth to the spectacle of the petitioner personally confessing in detail to the crimes for which he was later tried);  Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966) (finding denial of due process because of the “virulent and incriminating publicity” about the defendant, the notorious nature of the case, the televised interview of the defendant, and the “carnival atmosphere” of the trial, at which “bedlam reigned” due to the trial judge's unprecedented allowance of the press to have free reign over the courtroom).Relying on Supreme Court precedents, this court articulated the extraordinary standard for presuming prejudice in State v. David, where it stated that:Although extensive knowledge in the community of either the crimes or the putative criminal and his prior crimes is not in itself sufficient to render a trial constitutionally unfair, unfairness of a constitutional magnitude will be presumed in the presence of a trial atmosphere which is utterly corrupted by press coverage or which is entirely lacking in the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of the mob.425 So.2d at 1246 (citing Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975);  Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977);  Rideau v. Louisiana, supra;  Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965);  Sheppard v. Maxwell, supra ).

8.   For examples of other cases relying on this method of analyzing the question of possible community prejudice, see State v. Connolly, 96-1680, p. 5 (La.7/1/97), 700 So.2d 810, 815 (although 86.33%, 120 out of 139, potential jurors possessed some knowledge about the crime, most had only a vague recollection of the surrounding facts);  State v. Wilson, 467 So.2d 503, 513 (La.1985) (“Although a majority of prospective jurors (i.e., 24 of 39) admitted exposure to pretrial publicity, only four were excused for cause on ground of their formation of a fixed opinion․ A review of the responses by potential jurors on voir dire does not reveal the existence of collective community prejudice which could have denied defendant a fair trial before impartial jurors.”);  State v. Clark, 442 So.2d 1129, 1133 (La.1983) (motion for change of venue granted based on dry run voir dire in which 37 of 38 jurors recalled details of crime and only six out of 24 jurors in the last two groups questioned indicated that their knowledge would not affect their decision);  State v. David, 425 So.2d at 1247 (out of 112 jurors, 27 had read or heard about the case, but only six of those 27 had an opinion, and all four of those jurors who said that they could not put their opinion aside were excused for cause);  State v. Rodrigue, 409 So.2d 556, 559 (La.1982) (in a mock voir dire set up in order to determine the impact of media coverage by the court, 26 of 30 prospective jurors had read about the case, but only nine had fixed an opinion which satisfied the court that a jury could be chosen in that parish).

9.   In many of the cases that have been before this court on review of the same issue, the defendant entered into evidence video tapes of news broadcasts, logs of when reports were televised, and copies of the various newspaper articles reporting on the crime, which enabled the court to make a more informed inquiry as to possible prejudice.   Nothing of that nature was presented to the court in this case.

10.   Only 113 people of the original 125 person venire were questioned because a 12 person jury and 2 alternates were selected before the last panel of potential jurors was questioned.

11.   These numbers reflect that 17 out of 113 jurors were excused solely because they had a preconceived notion regarding the defendant's guilt.   An additional 19 people who were excused for opposing the imposition of the death penalty also admitted having developed a negative opinion of the defendant as well.

12.   We also note that the defendant filed two motions with this court on December 1, 2000, requesting supplementation of the record with transcripts of certain proceedings at which the defendant's indigent status was discussed and a request to file a supplemental brief regarding the indigency issue after receiving those supplemental transcripts.   These motions were filed as a result of this court's order to the trial court to provide a transcript of any hearing on indigent status that took place before August 29, 1995, and the trial court's response in a per curiam to which it attached a page from a transcript that had not previously been provided to this court.   See note 2. However, as discussed above, the court has fully considered those missing transcripts and has ruled in the defendant's favor on the indigency question.   Therefore, the motions for supplementation of the record and a supplemental brief are rendered moot by our holding.